NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 80318--Agenda 10--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KELVIN LEWIS,
Appellee.
Opinion filed December 19, 1996.
JUSTICE McMORROW delivered the opinion of the court:
At issue in this case is whether the statutory penalties for
armed robbery (720 ILCS 5/18--2 (West 1994)) and armed violence
predicated on robbery committed with a category I weapon (720 ILCS
5/33A--1 (West 1994)) are proportionate penalties pursuant to
article I, section 11, of the 1970 Illinois Constitution. The
circuit court, in a ruling dismissing a count of armed violence
predicated on robbery committed with a category I weapon, concluded
that the penalties are unconstitutionally disproportionate. The
State appealed directly to this court. 134 Ill. 2d R. 603. For the
reasons which follow, we affirm the decision of the circuit court.
Background
Defendant, Kelvin Lewis, was charged by information in the
circuit court of Cook County with one count of robbery (720 ILCS
5/18--1 (West 1994)), one count of armed violence predicated on
robbery committed with a category I weapon (720 ILCS 5/33A--1 (West
1994)), and one count of armed robbery (720 ILCS 5/18--2 (West
1994)). The charging instrument alleges that on June 24, 1995,
defendant displayed a handgun and took from the victim, by threat
of imminent use of force, a radar detector and a compact disc
player. All three counts in the information are based on this
single incident.
On November 28, 1995, defendant filed a pretrial motion to
dismiss the armed violence count of the information. In his motion,
defendant contended that he could not be charged with armed
violence predicated on robbery committed with a category I weapon,
such as a handgun, because the penalty for that offense violates
the proportionate penalties clause of the Illinois Constitution.
That clause provides:
"All penalties shall be determined *** according to
the seriousness of the offense *** ." Ill. Const. 1970,
art. I, §11.
The circuit court agreed. The circuit court noted that the
substantive elements of armed violence, where predicated on robbery
committed with a category I weapon, and armed robbery, are
identical. Yet, armed violence committed with a category I weapon
carries a mandatory minimum sentence of 15 years, while armed
robbery carries only a 6-year mandatory minimum sentence. Relying
on this court's decision in People v. Christy, 139 Ill. 2d 172
(1990), the circuit court concluded that the penalties for the two
offenses are unconstitutionally disproportionate and, accordingly,
dismissed the armed violence count. Subsequently, the State moved
to have the case removed from the call of the circuit court's
docket pending the outcome of this appeal. The circuit court
granted the motion and the State's appeal followed.
Analysis
We begin our analysis with the pertinent statutes. The armed
violence statute provides:
"§33A--1. Definitions.
(a) `Armed with a dangerous weapon'. A person is
considered armed with a dangerous weapon for purposes of
this Article, when he or she carries on or about his or
her person or is otherwise armed with a Category I,
Category II, or Category III weapon.
(b) A Category I weapon is a handgun ***." 720 ILCS
5/33A--1 (West 1994).
"§33A--2. Armed violence--Elements of the offense.
A person commits armed violence when, while armed with a
dangerous weapon, he commits any felony defined by
Illinois Law." 720 ILCS 5/33A--2 (West 1994).
"§33A--3. Sentence.
(a) Violation of Section 33A--2 with a Category I
weapon is a Class X felony for which the defendant shall
be sentenced to a minimum term of imprisonment of 15
years." 720 ILCS 5/33A--3 (West 1994).
The robbery statute provides:
"§18--1. Robbery.
(a) A person commits robbery when he or she takes
property, except a motor vehicle covered by Section 18--3
or 18--4, from the person or presence of another by the
use of force or by threatening the imminent use of force.
(b) Sentence.
Robbery is a Class 2 felony." 720 ILCS 5/18--1 (West
1994).
The armed robbery statute provides:
"§18--2. Armed Robbery.
(a) A person commits armed robbery when he or she
violates Section 18--1 while he or she carries on or
about his or her person, or is otherwise armed with a
dangerous weapon.
Armed robbery is a Class X felony." 720 ILCS 5/18--2
(West 1994).
Before this court, defendant relies upon the reasoning given
by the circuit court. Defendant notes the disparity between the
penalties for armed violence predicated on robbery committed with
a category I weapon and armed robbery, and contends that this
court's decision in Christy compels the conclusion that the
penalties for the two offenses are unconstitutionally
disproportionate.
In Christy, the defendant abducted two teenage boys from a
campsite in the middle of the night and took them to a storage
building where he held them captive for several hours. The
defendant repeatedly threatened to kill his victims and, at one
point, held a large steak knife to the throat of one of the boys.
After trial, the defendant was convicted of one count of kidnapping
and one count of armed violence predicated on kidnapping with a
category I weapon, specifically, a "knife with a blade of at least
3 inches in length." Upon review, the appellate court vacated
defendant's conviction and sentence for armed violence and remanded
for sentencing on the offense of aggravated kidnapping.
This court affirmed the appellate court's decision. The court
observed that the commission of kidnapping while armed with a
"knife with a blade of at least 3 inches in length" constituted
armed violence committed with a category I weapon. Under the armed
violence statute as it then existed, this offense was a Class X
felony, punishable by not less than 6 years and not more than 30
years in prison. However, the commission of kidnapping while armed
with a "knife with a blade of at least 3 inches in length" also
constituted aggravated kidnapping. This offense was only a Class 1
felony, punishable by not less that 4 years and not more than 15
years in prison. The court concluded that it was against "common
sense and sound logic" for identical offenses to render two
different penalties. Accordingly, the court held that the penalties
for aggravated kidnapping and armed violence predicated on
kidnapping with a category I weapon were unconstitutionally
disproportionate. Christy, 139 Ill. 2d at 181.
The Christy court rejected the State's argument that the
penalties for the offenses at issue could be upheld on the grounds
that "the ability to choose between them is a matter of
`prosecutorial discretion.' " Christy, 139 Ill. 2d at 180. In
rejecting this contention, the court noted:
"Generally, prosecutorial discretion is a valuable aspect
of the criminal justice system. [Citation.] In the
present case, however, prosecutorial discretion will
effectively nullify the aggravated kidnapping statute, as
skilled State's Attorneys will usually seek the more
severe sentence and, therefore, charge defendants with
armed violence rather than aggravated kidnapping. An
ineffective aggravated kidnapping statute is not what the
legislature intended when it enacted both the armed
violence statute and aggravated kidnapping statutes."
Christy, 139 Ill. 2d at 180.
We agree with defendant that the holding of Christy governs
our analysis in the case at bar. Here, we consider the relationship
of three statutory offenses: robbery, armed robbery and armed
violence. Robbery, a felony offense, is defined as the taking of
property, except a motor vehicle, from the person or presence of
another by the use of force or by threatening the imminent use of
force. 720 ILCS 5/18--1 (West 1994). Armed robbery is defined as
the commission of robbery while carrying or otherwise being armed
with a dangerous weapon. 720 ILCS 5/18--2 (West 1994). The parties
do not dispute that a handgun is a dangerous weapon for purposes of
the armed robbery statute. Accordingly, the commission of robbery
while armed with a handgun constitutes armed robbery, a Class X
offense punishable by an unextended term sentence ranging from 6 to
30 years' imprisonment. 730 ILCS 5/5--8--1(a)(3) (West 1994).
Armed violence is defined as the commission of any felony
defined by Illinois law while armed with a dangerous weapon. 720
ILCS 5/33A--2 (West 1994). Dangerous weapons are divided into three
categories (720 ILCS 5/33A--1 (West 1994)) and the commission of
any felony with a category I weapon, such as a handgun, is a Class
X offense punishable by an unextended term sentence ranging from 15
to 30 years' imprisonment. 720 ILCS 5/33A--3(a) (West 1994).
Accordingly, the commission of robbery while armed with a handgun
also constitutes armed violence, an offense punishable by a
mandatory minimum term of 15 years' imprisonment. Thus in this
case, as in Christy, we are presented with two substantively
identical offenses which, illogically, are punished with disparate
penalties. Therefore, in accordance with the principles of Christy,
we conclude that the circuit court was correct in finding that the
penalty for armed violence predicated on robbery committed with a
category I weapon violates the proportionate penalties clause.
The State does not dispute the relevance of Christy to the
instant appeal but, instead, urges this court to overrule that
decision. The State offers two major reasons for doing so. First,
the State asserts that the Christy court erred in using the
proportionality clause to scrutinize penalty provisions created by
the legislature. According to the State, the framers of the 1970
Constitution never intended for the proportionality clause to be
applied against legislative enactments. Rather, it was meant to be
used only as a check on judicially imposed penalties. Second, the
State maintains that the proportionality clause does not permit a
proportionality review which involves the comparison of different
statutes and, further, that any such review violates the separation
of powers doctrine (Ill. Const. 1970, art. II, §1). We disagree
with each contention.
This court has long held that the proportionality clause
requires "the legislature, in defining crimes and their penalties,
to consider the constitutional goal[ ] *** of providing a penalty
according to the seriousness of the offense." (Emphasis added.)
People v. Taylor, 102 Ill. 2d 201, 206 (1984); People v. Hamm, 149
Ill. 2d 201, 219 (1992); see also People v. Elliott, 272 Ill. 592,
599 (1916) (proportionate penalties clause in the 1870 Illinois
Constitution also applied to legislature). Despite extensive
citation to the debates of the Sixth Illinois Constitutional
Convention, the State has failed to offer any evidence that the
framers intended to limit the reach of the proportionate penalties
clause to the judiciary. Indeed, as defendant points out, the only
discussion in the debates regarding the applicability of the clause
to the legislature indicates that it was meant to be binding upon
legislative enactments. See 3 Record of Proceedings, Sixth Illinois
Constitutional Convention 1393 (comments of Delegates Kamin and
Foster). Accordingly, we adhere to the firmly established principle
that the proportionate penalties clause may act as a restriction on
the power of the legislature to establish criminal penalties.
The State next contends that even if the proportionality
clause is applicable to the legislature, it does not permit the
judiciary to engage in a proportionality review which involves the
comparison of different statutes and their penalties. According to
the State, the proportionality clause only allows a court to
compare, in isolation, the gravity of a particular offense with the
severity of the penalty imposed for that offense. Any
proportionality review which compares different statutes, the State
argues, is an "aberration" from this "traditional" method of
review.
Contrary to the State's assertions, the general practice of
comparing different offenses and their respective penalties is an
accepted part of this court's proportionality review. See, e.g.,
People v. Bailey, 167 Ill. 2d 210, 236-37 (1995) (comparing the
offense of stalking with assault and disorderly conduct); People v.
Lee, 167 Ill. 2d 140, 146-47 (1995) (comparing aggravated battery
with other battery offenses); People v. Hickman, 163 Ill. 2d 250,
260 (1994) (comparing criminal drug conspiracy with calculated
criminal drug conspiracy); People v. Johns, 153 Ill. 2d 436, 447-49
(1992) (comparing various sections of the Illinois Vehicle Code);
People v. Hamm, 149 Ill. 2d 201, 218-20 (1992) (comparing licensing
provisions of the Illinois Fish Code with similar provisions in the
Illinois Vehicle Code); People v. Simmons, 145 Ill. 2d 264, 271-72
(1991) (comparing offense of operating a vehicle without liability
insurance with other offenses in the criminal code); People v.
Morris, 136 Ill. 2d 157, 163-68 (1990) (comparing various offenses
under Illinois Vehicle Code). The State's argument that the
proportionality clause does not permit a court to compare different
offenses for purposes of proportionality review runs counter to
this considerable weight of authority. Accordingly, we reject this
contention.
Similarly unpersuasive is the State's assertion that a
proportionality review which involves comparing different statutes
violates separation of powers principles. The State's argument on
this point is addressed specifically to those situations in which
a court examines and compares offenses which it considers to be
similar. According to the State, a court must subjectively
determine the gravity of the offenses under consideration in order
to deem them similar for purposes of review. In this way, the State
argues, the court inappropriately second--guesses the legislature
and violates the separation of powers doctrine. We disagree. The
comparison of similar statutes and their penalties helps impose a
measure of objectivity upon the process of proportionality review
which, if restricted to comparing a single offense and its penalty,
would otherwise be lacking. See generally J. Friessen, State
Constitutional Law: Litigating Individual Rights, Claims, and
Defenses §13--4(a)(2) (2d ed. 1996). Indeed, the large number of
decisions of this court which have employed a proportionality
review involving the comparison of similar statutes is an
indication of the utility and acceptance of this type of analysis.
Therefore, we decline to find any separation of powers problem with
this general practice.
Furthermore, the proportionality analysis employed in Christy
is even less troublesome than the general cross-comparison type of
review discussed above because under Christy, a court compares
identical offenses, rather than merely similar ones. A court
employing the Christy analysis does not make any subjective
determinations regarding the gravity of an individual offense or
the severity of the penalty imposed for that offense. Instead, the
court relies exclusively on the express legislative pronouncements
under review. The court compares identical offenses, as defined by
the same legislative body, with their respective penalties, again,
as given by the same legislative body. Thus, under the Christy
analysis, there is no risk that the judiciary will second-guess the
legislature or otherwise violate separation of powers principles.
Indeed, far from rendering the judiciary a "superlegislature," as
the State argues, the proportionality review employed in Christy is
the most objective and deferential type of review available to the
courts. For these reasons, we decline to overrule Christy.
The State maintains that even if Christy is not overruled, the
circuit court's decision should nevertheless be reversed. The State
contends that by dismissing the armed violence count at the
pretrial stage, the circuit court improperly usurped the
prosecutor's power and discretion to evaluate the evidence and
determine what offense or offenses should be charged. As noted
above, this argument was expressly rejected in Christy. Christy,
139 Ill. 2d at 180. We see no reason to depart from Christy on this
point.
In addition, we believe that the State's argument regarding
prosecutorial discretion misconstrues the nature of defendant's
challenge to the armed violence statute. Defendant does not allege
that the selection of charges in this case was merely an improper
use of prosecutorial discretion. Rather, in a more fundamental
attack, defendant asserts that the mandatory minimum penalty for
armed violence predicated on robbery committed with a category I
weapon violates the proportionality clause, and therefore, that the
State's Attorney had no authority, discretionary or otherwise, to
charge that offense.
In light of defendant's challenge, our constitutionally
required task is to examine the armed violence sentencing scheme
and determine whether it provides a proportionate penalty for the
offense at issue. Employing the most objective method of
proportionality review available reveals that it does not. Because
the mandatory minimum penalty for armed violence predicated on
robbery committed with a category I weapon violates the
constitutional guarantee of proportionate sentencing, the State's
Attorney had no authority to charge that offense. See, e.g., People
v. Hamm, 149 Ill. 2d 201, 218-20 (1992). It is a truism that the
circuit court cannot usurp an authority which the State's Attorney
does not have. Therefore, the State's argument must necessarily
fail.
In a related, and final, argument, the State contends that the
circuit court's ruling should be reversed because, as of yet, there
has been no adjudication of guilt and no sentencing. According to
the State, defendant has not been harmed by any deficiency in the
penalty provisions of the armed violence statute at this stage of
the proceedings. Therefore, the State argues, the circuit court's
ruling regarding those provisions was premature. We disagree. This
court has repeatedly considered the proportionality of penalty
provisions in the pretrial posture. See Bailey, 167 Ill. 2d at 234-
37; People v. Farmer, 165 Ill. 2d 194, 209-10 (1995); Johns, 153
Ill. 2d at 447-49; Hamm, 149 Ill. 2d at 218-20; Simmons, 145 Ill.
2d at 269-72. The State has not addressed these cases or suggested
any reason why we should depart from the principles which they
embody. Accordingly, we decline to do so.
Summarizing, we hold that the penalties for armed violence
predicated on robbery committed with a category I weapon and armed
robbery are unconstitutionally disproportionate. In so holding, we
note that the State is not precluded from proceeding against
defendant on the armed robbery charge. Because armed robbery is a
Class X felony, if defendant is ultimately convicted, the
sentencing range available to the judge will be from 6 to 30 years'
imprisonment.
For the foregoing reasons we affirm the decision of the
circuit court.
Affirmed.
JUSTICE MILLER, dissenting:
I do not agree with the majority's conclusion that the
sentences authorized for the two offenses at issue in this case,
taken together, violate the proportionality clause found in article
I, section 11, of the Illinois Constitution (Ill. Const. 1970, art.
I, §11). In my view, the availability of different sentences for
the same misconduct is simply a matter of legislative judgment and
not violative of article I, section 11, of the Illinois
Constitution.
As the majority opinion recounts, armed robbery is a Class X
felony, punishable by a term of imprisonment of between 6 and 30
years. 720 ILCS 5/18--2(b); 730 ILCS 5/5--8--1(a)(3) (West 1994).
Armed violence predicated on robbery committed with a category I
weapon, such as a handgun, is also a Class X felony but is
punishable by a term of 15 to 30 years' imprisonment. 720 ILCS
5/33A--3(a); 730 ILCS 5/5--8--1(a)(3) (West 1994). The majority
believes that the existence of different ranges of penalties for
the two offenses, which may be based on the same underlying
misconduct, violates the proportionality clause of the
constitution. I do not agree.
Article I, section 11, provides:
"All penalties shall be determined both according to
the seriousness of the offense and with the objective of
restoring the offender to useful citizenship. No
conviction shall work corruption of blood or forfeiture
of estate. No person shall be transported out of the
State for an offense committed within the State."
This provision is the successor to article II, section 11, of the
Illinois Constitution of 1870, which provided, in pertinent part,
"All penalties shall be proportioned to the nature of the offense
***." Ill. Const. 1870, art. II, §11. The adjuration in the present
constitution to determine "[a]ll penalties *** according to the
seriousness of the offense" is customarily referred to as the
proportionate penalties clause, even though the term "proportioned"
appears nowhere in it.
The proper scope and operation of this portion of article I,
section 11, was recently described in People v. Farmer, 165 Ill. 2d
194, 209-10 (1995), in which this court explained:
"While this provision places some restraint on the right
of the legislature to establish penalties for crimes
(People v. Simmons (1991), 145 Ill. 2d 264, 270), this
court has repeatedly stated that `the constitutional
command that "penalties shall be proportioned to the
nature of the offense" would justify interference with
the legislative judgment only if the punishment was
"cruel," "degrading" or "so wholly disproportionate to
the offense committed as to shock the moral sense of the
community." ' (People v. Gonzales (1962), 25 Ill. 2d 235,
240, quoting People ex rel. Bradley v. Illinois State
Reformatory (1894), 148 Ill. 413, 421-22; ***.)"
In my view, the proportionate penalties language of article I,
section 11, does not preclude the legislature from defining
offenses that share the same elements but authorize different
penalties. If the potential punishment for each offense alone
passes muster under that provision, I do not believe that the
punishments, when considered together, can be deemed
unconstitutionally disproportionate, even though their underlying
offenses are based on the same misconduct. A sentence must be
judged not simply in relation to another number--"15 is greater
than 6"--but in relation to an offense. Here, if the sentence for
each offense, standing alone, is constitutionally valid, then
neither sentence should be considered disproportionate simply
because one exceeds the other. The sentences might be subject to
challenge on some other ground, but not as disproportionate
penalties. In the present case, the majority makes no effort to
establish that the penalty for armed violence committed with a
category I weapon is disproportionate to that offense.
It might be thought that the existence of separate offenses
and their distinct penalties allows the prosecutor undue authority
in determining which offense to charge, but similar forms of
prosecutorial discretion have generally been upheld against
constitutional challenge. See People v. Bailey, 167 Ill. 2d 210,
234-36 (1995); People v. Wade, 131 Ill. 2d 370, 379 (1989); People
v. McCollough, 57 Ill. 2d 440, 444 (1974); see also United States
v. Batchelder, 442 U.S. 114, 124-25, 60 L. Ed. 2d 755, 765-66, 99
S. Ct. 2198, 2204-05 (1979). A contrary result was reached in
People v. Christy, 139 Ill. 2d 172 (1990), on which the majority in
this case principally relies; I dissented in Christy, and I
continue to believe that that decision was wrong.
JUSTICE NICKELS joins in this dissent.