People v. Clemons
Ill.
ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. Clemons, 2012 IL 107821
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. COREY D.
Court: CLEMONS, Appellee.
Docket No. 107821
Filed April 19, 2012
Held The straightforward, bright-line and objective “identical elements” test
(Note: This syllabus is the proper one for whether a penalty is invalid as disproportionate
constitutes no part of under the Illinois Constitution; and where there was such
the opinion of the court disproportionality, a conviction for armed robbery with a firearm was
but has been prepared properly remanded for resentencing under the pre-firearms-enhancement
by the Reporter of statute.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of Champaign County, the Hon.
Thomas J. Difanis, Judge, presiding.
Judgment Affirmed.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Julia Rietz, State’s
Appeal Attorney, of Urbana (Michael A. Scodro, Solicitor General, and Michael
M. Glick and Garson S. Fischer, Assistant Attorneys General, of Chicago,
and Patrick Delfino, Robert J. Biderman and Anastacia R. Brooks, of the
Office of the State’s Attorneys Appellate Prosecutor, of Springfield, of
counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy
Defender, and Susan M. Wilham, Assistant Appellate Defender, of the
Office of the State Appellate Defender, of Springfield, for appellee.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Garman, Karmeier, and Burke concurred in
the judgment and opinion.
Chief Justice Kilbride specially concurred, with opinion.
OPINION
¶1 At issue in this appeal is whether this court should overrule People v. Hauschild, 226 Ill.
2d 63 (2007), or, alternatively, abandon the “identical elements test” as a part of our
proportionate penalties clause jurisprudence. For the reasons discussed below, we affirm the
continuing validity of Hauschild, and decline to abandon the identical elements test. We thus
affirm the judgment of the appellate court which followed Hauschild (No. 4-06-0823 (Nov.
26, 2008) (unpublished order under Supreme Court Rule 23)), and remand this matter to the
trial court for resentencing.
¶2 BACKGROUND
¶3 On July 19, 2006, defendant Corey D. Clemons was convicted by a Champaign County
jury of armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2) (West 2006)) and
home invasion while armed with a firearm (720 ILCS 5/12-11(a)(3) (West 2006)), in
connection with an incident that occurred earlier that year at a mobile home park in Urbana,
Illinois. Each offense was a Class X felony, which carried a sentence of 6 to 30 years’
imprisonment, plus a 15-year sentencing enhancement for use of a firearm. 720 ILCS 5/18-
2(b), 12-11(c) (West 2006); 730 ILCS 5/5-8-1(a)(3) (West 2006). Thus, the sentencing range
was 21 to 45 years. The trial court sentenced defendant to a term of 25 years’ imprisonment
for each offense, to be served concurrently.
¶4 The appellate court affirmed defendant’s convictions and sentences (People v. Clemons,
No. 4-06-0823 (May 1, 2008) (unpublished order under Supreme Court Rule 23)), and
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defendant filed a petition for leave to appeal with this court. We denied defendant’s petition,
but directed the appellate court to vacate its judgment and reconsider in light of Hauschild.
People v. Clemons, 229 Ill. 2d 634 (2008) (table). Hauschild, which was decided while
defendant’s direct appeal was pending, held that the penalty for armed robbery while armed
with a firearm violates the proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, § 11). Hauschild, 226 Ill. 2d at 86-87. In accordance with Hauschild, the
appellate court held that because defendant was sentenced under a statute which violated the
proportionate penalties clause, the matter must be remanded to the trial court for resentencing
in accordance with the armed robbery statute as it existed prior to the adoption of the
sentencing enhancements for firearm use (see Pub. Act 91-404, § 5 (eff. Jan. 1, 2000)
(amending, inter alia, 720 ILCS 5/18-2)). No. 4-06-0823 (Nov. 26, 2008) (unpublished order
under Supreme Court Rule 23). Thus, on remand to the trial court, defendant would be
subject to a term of 6 to 30 years’ imprisonment for his armed robbery conviction, rather than
a term of 21 to 45 years’ imprisonment. See 720 ILCS 5/18-2 (West 1998); 730 ILCS 5/5-8-
1(a)(3) (West 1998).
¶5 We allowed the State’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010);
Ill. S. Ct. R. 612 (eff. Sept. 1, 2006)), and directed the parties to include in their briefs “a
discussion of whether the identical elements test should be abandoned in proportional
penalties analysis.” People v. Clemons, 238 Ill. 2d 658 (2010) (supervisory order).
¶6 ANALYSIS
¶7 I
¶8 The State argues that Hauschild should be overruled because it misconstrued the armed
violence statute and misapplied the identical elements test. The State argues in the alternative
that the identical elements test should be abandoned because the test is not supported by the
constitutional text, invades the power of the legislature, and has become unworkable in
practice. Because these arguments raise purely legal issues, our review proceeds de novo. See
People v. Caballes, 221 Ill. 2d 282, 289 (2006).
¶9 Preliminarily, we note that the State’s arguments implicate the doctrine of stare decisis.
This doctrine “expresses the policy of the courts to stand by precedents and not to disturb
settled points.” Neff v. George, 364 Ill. 306, 308-09 (1936), overruled on other grounds by
Tuthill v. Rendelman, 387 Ill. 321, 330 (1944). Thus, a question once deliberately examined
and decided should be closed to further argument, ensuring that the law will develop in a
“principled, intelligent fashion,” immune from erratic changes. People v. Colon, 225 Ill. 2d
125, 146 (2007). See also Moehle v. Chrysler Motors Corp.,93 Ill. 2d 299
, 304 (1982) (stare
decisis enables the people and the bar of this state “to rely upon our decisions with assurance
that they will not be lightly overruled”). Although stare decisis is not an inexorable
command, any departure from stare decisis “ ‘demands special justification.’ ” Chicago Bar
Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994) (quoting Arizona v.
Rumsey, 467 U.S. 203, 212 (1984)). AccordColon, 225 Ill. 2d at 146
. Accordingly, prior
decisions will not be overruled absent “good cause” or “compelling reasons.” (Internal
quotation marks omitted.) Vitro v. Mihelcic, 209 Ill. 2d 76, 82 (2004) (quoting Moehle, 93
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Ill. 2d at 304). Good cause exists where, for example, the decisions are unworkable or badly
reasoned. People v. Sharpe, 216 Ill. 2d 481, 520 (2005).
¶ 10 With these principles in mind, we consider first whether, as the State argues, Hauschild
should be overruled.
¶ 11 II
¶ 12 In Hauschild, we held that the sentence for armed robbery while armed with a firearm
violates the proportionate penalties clause “because the penalty for that offense is more
severe than the penalty for the identical offense of armed violence predicated on robbery with
a category I or category II weapon.” Hauschild, 226 Ill. 2d at 87. Whereas armed robbery
while armed with a firearm is punishable by an enhanced sentence of 21 to 45 years’
imprisonment (720 ILCS 5/18-2(a)(2), (b) (West 2000)), armed violence predicated on
robbery with a category I or II weapon is punishable by a sentence of 15 to 30 years’
imprisonment (720 ILCS 5/33A-3(a) (West 2000)). Id. at 86. Relying on the seminal case of
People v. Christy, 139 Ill. 2d 172 (1990), which first applied what would later be called “the
identical elements test,” we held that common sense and sound logic dictate that the penalties
for these identical offenses should be identical. Id.
¶ 13 In the course of our analysis in Hauschild, we considered the State’s argument that armed
robbery cannot serve as a predicate felony for armed violence and, thus, the two offenses
cannot have identical elements. At the time of the offenses at issue in Hauschild, the armed
violence statute provided in relevant part:
“A person commits armed violence when, while armed with a dangerous weapon, he
commits any felony defined by Illinois Law, except first degree murder, attempted
first degree murder, intentional homicide of an unborn child, predatory criminal
sexual assault of a child, aggravated criminal sexual assault, aggravated kidnaping,
aggravated battery of a child, home invasion, armed robbery, or aggravated vehicular
hijacking.” (Emphasis added.) 720 ILCS 5/33A-2(a) (West 2000).
¶ 14 Although we agreed with the State that the armed violence statute expressly excluded
armed robbery as a predicate offense for armed violence, we noted that the statute did not
exclude the offense of robbery. Hauschild, 226 Ill. 2d at 85. We declined to depart from the
statute’s unambiguous language excluding only armed robbery “by creating exceptions,
limitations, or conditions not expressed by the legislature.” Id. at 85. Because robbery could
serve as a predicate felony under the armed violence statute, armed violence could be
compared with armed robbery to determine whether these offenses have identical elements
but disparate sentences. Id. at 85.
¶ 15 Consistent with Hauschild, the State concedes that the legislature did not explicitly bar
armed violence predicated on simple robbery. Notwithstanding this concession, the State
argues that this court misconstrued the armed violence statute, as evinced by a subsequent
statutory amendment. The State notes that shortly after Hauschild was decided, the
legislature enacted Public Act 95-688, which, among other things, deleted the reference to
armed robbery in the armed violence statute:
“A person commits armed violence when, while armed with a dangerous weapon, he
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commits any felony defined by Illinois Law, except first degree murder, attempted
first degree murder, intentional homicide of an unborn child, second degree murder,
involuntary manslaughter, reckless homicide, predatory criminal sexual assault of a
child, aggravated criminal sexual assault, aggravated kidnaping, aggravated battery
of a child, home invasion, or any offense that makes the possession or use of a
dangerous weapon either an element of the base offense, an aggravated or enhanced
version of the offense, or a mandatory sentencing factor that increases the sentencing
range armed robbery, or aggravated vehicular hijacking.” (Underscores and strikeouts
in original.) Pub. Act 95-688, § 4 (eff. Oct. 23, 2007) (amending 720 ILCS 5/33A-2).
¶ 16 The State contends that the legislature’s purpose in adopting Public Act 95-688 was to
“correct” Hauschild and “clarify” what the legislature considered to be the statute’s meaning
all along, i.e., that robbery may not serve as a predicate felony for armed violence because
armed robbery is an “enhanced” version of robbery with “possession or use of a dangerous
weapon” as an element. See 95th Ill. Gen. Assem., House Proceedings, July 12, 2007, at 4
(statements of Representative Turner) (stating that amendment to the armed violence statute
“clarified” the statute); 95th Ill. Gen. Assem., Senate Proceedings, July 26, 2007, at 8
(statements of Senator Cullerton) (stating that the bill underlying Public Act 95-688
addresses an Illinois Supreme Court decision that held the legislature violated the
proportionate penalties clause and that the bill “corrects that”). The State continues that,
pursuant to In re Detention of Lieberman, 201 Ill. 2d 300, 320 (2002), such a clarifying
amendment is treated as a legislative declaration of the meaning of the prior statute, and that
Hauschild is at odds with the legislative declaration set forth in Public Act 95-688. The State
thus concludes that this court should overrule Hauschild.
¶ 17 We agree with the State that under the statute, as amended by Public Act 95-688, simple
robbery may no longer serve as a predicate felony for armed violence. We disagree, however,
that pursuant to Lieberman, we should overrule our interpretation of the armed violence
statute that we adopted in Hauschild.
¶ 18 In Lieberman, we were called upon to construe a criminal statute which, prior to our
review, had been the subject of a “cleanup” amendment. In that case, we agreed with the
State that the amendment served to clarify the legislature’s original intent and supported our
construction of the preamended statute. Lieberman, 201 Ill. 2d at 320-23. Here, however, the
amendment to the armed violence statute was adopted after this court’s interpretation of that
statute in Hauschild. In other words, our interpretation was a part of the armed violence
statute at the time Public Act 95-688 was enacted. See Sanelli v. Glenview State Bank, 108
Ill. 2d 1, 14 (1985). Lieberman does not speak to this situation. We note, moreover, that
“while the General Assembly can pass legislation to prospectively change a judicial
construction of a statute if it believes that the judicial interpretation was at odds with
legislative intent, it cannot effect a change in that construction by a later declaration of what
it had originally intended.” People v. Nitz, 173 Ill. 2d 151, 163 (1996), overruled on other
grounds by People v. Mitchell, 189 Ill. 2d 312, 329 (2000); see also Roth v. Yackley,77 Ill. 2d
423, 428-29 (1979).
¶ 19 Hauschild remains the law as to the meaning of the armed violence statute prior to its
amendment by Public Act 95-688.
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¶ 20 III
¶ 21 The State argues that Hauschild should be overruled for the further reason that it
misapplied the identical elements test. According to the State, the elements of armed robbery
with a firearm and armed violence predicated on robbery with a category I or II weapon are
not identical because they differ in specificity. The State explains that only robbery may
satisfy the robbery element of armed robbery with a firearm. Armed violence, however, may
be predicated on any number of felonies while armed with any of a number of weapons.
Compare 720 ILCS 5/18-2(a)(2) (West 2006) (armed robbery while armed with a firearm),
with 720 ILCS 5/33A-2(a) (West 2006) (armed violence) and 720 ILCS 5/33A-1(c)(2) (West
2006) (defining categories of dangerous weapons for purposes of armed violence statute).
Hauschild, the State contends, failed to take into account the far broader definition of armed
violence compared to the more specific armed robbery with a firearm. The State argues that
this distinction justifies different penalties for the two crimes, and that Hauschild improperly
expanded the identical elements test.
¶ 22 We agree with the State that armed violence may encompass conduct more varied than
that required for armed robbery with a firearm. The point of Hauschild, however, is that
when armed violence is based on robbery with a category I or category II weapon, it is
punished less severely than the identical conduct when charged as armed robbery with a
firearm. As explained in Hauschild:
“A person commits that offense [i.e., armed robbery while armed with a firearm]
when he ‘takes property *** 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(a) (West 2000)),
and he ‘carries on or about his *** person or is otherwise armed with a firearm’ (720
ILCS 5/18-2(a)(2) (West 2000)). A person commits the offense of armed violence
predicated on robbery when, ‘while armed with a dangerous weapon, he commits
[robbery (720 ILCS 5/18-1 (West 2000))].’ 720 ILCS 5/33A-2(a) (West 2000). A
person is considered to be ‘armed with a dangerous weapon’ in the context of the
armed violence statute ‘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.’ 720 ILCS
5/33A-1(c)(1) (West 2000).” Hauschild, 226 Ill. 2d at 86.
Firearms are included in the statutory definition of category I and category II weapons. 720
ILCS 5/33A-1(c)(2) (West 2000). Thus, Hauschild concluded that “the elements of armed
robbery while armed with a firearm and armed violence predicated on robbery with a
category I or category II weapon are identical” and their sentences should likewise be
identical. Hauschild, 226 Ill. 2d at 86.
¶ 23 Hauschild was not the first case to find a proportionate penalty clause violation based on
a comparison of the armed robbery statute and the armed violence statute. In People v. Lewis,
175 Ill. 2d 412, 418 (1996), we held that the penalty for armed violence based on robbery
with a category I weapon, when compared to the then less severe penalty for armed robbery
while armed with a handgun, violates the proportionate penalties clause based on the
identical elements test. See also Christy, 139 Ill. 2d at 181 (proportionate penalties clause
violated where the penalty for armed violence based on kidnapping with a category I weapon
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was more severe than the penalty for the identical offense of aggravated kidnapping with the
same weapon). Cf. People v. Woolley, 178 Ill. 2d 175, 204-05 (1997) (following Lewis and
vacating the defendant’s armed violence conviction based on robbery with a handgun, where
the defendant was also convicted of the identical offense of armed robbery with a handgun,
which carried a lesser sentence). Thus, the identical elements test has never required that the
two offenses be equally specific. Contrary to the State’s argument, Hauschild did not break
new ground in this area and did not expand the identical elements test.
¶ 24 The State provides no reasoned basis for its contention that, pursuant to Hauschild,
burglary and residential burglary, as well as many other lesser-included and greater offenses,
will now be found to violate the proportionate penalties clause under the identical elements
test. “A person commits burglary when without authority he knowingly enters or without
authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle ***,
railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS
5/19-1(a) (West 2010). As the State itself recognizes, residential burglary requires that the
place entered be “the dwelling place of another.” 720 ILCS 5/19-3(a) (West 2010). Because
the elements of burglary and residential burglary are not the same (as would be the case with
other lesser-included and greater offenses), a proportionate penalties challenge could not
succeed under the identical elements test. Nothing in Hauschild suggests that it could.
¶ 25 People v. Koppa, 184 Ill. 2d 159 (1998), cited by the State, is inapposite. In Koppa, we
found no violation of the proportionate penalties clause under the identical elements test
where the armed violence charge contained an additional element not found in the other
charged offenses of aggravated criminal sexual abuse and aggravated kidnapping. Koppa,
184 Ill. 2d at 167-68. Unlike Koppa, the armed violence offense at issue here does not
contain any additional element not contained in the armed robbery offense.
¶ 26 Because Hauschild did not misapply the identical elements test, we reject the State’s
argument that Hauschild should be overruled.
¶ 27 IV
¶ 28 The State argues, in the alternative, that this court should abandon the identical elements
test for proportionality review because such a test is not supported by the constitutional text;
the test invades the power of the General Assembly to assign penalties; and the test has
become unworkable in practice. We disagree with all three propositions.
¶ 29 “The best guide to interpreting the Illinois Constitution is the document’s own plain
language.” People v. Purcell, 201 Ill. 2d 542, 549 (2002). See also People ex rel. Chicago
Bar Ass’n v. State Board of Elections, 136 Ill. 2d 513, 526 (1990) (rules of statutory
construction govern the construction of constitutional provisions). Article I, section 11, of
the Illinois Constitution, entitled “Limitation of Penalties after Conviction,” plainly states:
“All penalties shall be determined both according to the seriousness of the offense and with
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the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11.1
The constitutional mandate set forth in article I, section 11, provides a check on the judiciary,
i.e., the individual sentencing judge, as well as the legislature, which sets the statutory
penalties in the first instance. People v. Taylor, 102 Ill. 2d 201, 205-06 (1984). Accord
Lewis, 175 Ill. 2d at 419-20.
¶ 30 A defendant’s challenge to the decision of the individual sentencing judge is based on
the defendant’s belief that although the sentence comports with the sentencing statute, the
sentence nonetheless violates article I, section 11, because the judge failed to set the sentence
“according to the seriousness of the offense” and/or “with the objective of restoring the
[defendant] to useful citizenship.” Ill. Const. 1970, art. I, § 11. The identical elements test
does not address itself to this type of challenge. Rather, the identical elements test comes into
play when a defendant challenges the sentencing scheme itself. This test provides one
method for determining whether the legislature has satisfied the first of two constitutional
requirements that penalties must be determined “according to the seriousness of the offense.”
Ill. Const. 1970, art. I, § 11. As this court explained in Sharpe, “[i]f the legislature
determines that the exact same elements merit two different penalties, then one of these
penalties has not been set in accordance with the seriousness of the offense. The legislature
has made two different judgments about the seriousness of one offense.” Sharpe, 216 Ill. 2d
at 522. Thus, the identical elements test gives effect to the plain language of our state
constitution.
¶ 31 The State argues that if the identical elements test is consistent with the plain language
of article I, section 11, then other states, including Indiana, Maine, Nebraska, New
Hampshire, Oregon, Rhode Island, Vermont, West Virginia and Wyoming, would have
adopted an identical elements test when interpreting similar penalty provisions in their state
constitutions. Citing case law from some, but not all, of these jurisdictions, the State posits
that none of these states have adopted an identical elements test and that our reading of the
Illinois Constitution is simply wrong.
¶ 32 This court’s jurisprudence of Illinois constitutional law cannot be predicated on the
actions of our sister states. Caballes, 221 Ill. 2d at 313. To the extent, however, that the
analyses employed by other jurisdictions may inform our own analysis, we find the cases
cited by the State irrelevant. Not one of the cases the State cites held that disparate sentences
for identical offenses does not offend that state’s proportionate penalties clause. See State
v. Pickering, 462 A.2d 1151, 1159-63 (Me. 1983) (rejecting due process and equal protection
challenges to a drunk driving law that created both civil and criminal liability); State v.
Worthley, 815 A.2d 375, 376-77 (Me. 2003) (holding that mandatory minimum jail sentence
of seven days for a second drunk driving offense was not cruel and unusual punishment as
applied to the defendant who suffered from post-traumatic stress disorder); State v. Elbert,
480 A.2d 854, 862 (N.H. 1984) (finding no gross disproportion between penalty of 15 to 30
1
Article I, section 11, also provides: “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.” These constitutional provisions are not at issue in this case.
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years and attempted second-degree murder); State v. Wheeler, 175 P.3d 438, 454 (Or. 2007)
(holding that the defendant’s life sentence for 18 separate sex felonies bore a sufficient
relationship to the gravity of the crimes as well as his prior felony convictions); McKinney
v. State, 843 A.2d 463, 470-71 (R.I. 2004) (rejecting proportionality challenge to agreed upon
sentence that was within statutory sentencing range); State v. Venman, 564 A.2d 574, 582
(Vt. 1989) (rejecting the defendant’s proportionality challenge to theoretical punishment of
10 years for each count of Medicaid fraud, where the defendant’s actual sentence involved
only 30 days of incarceration). Although the Wyoming high court rejected an identical
elements argument, the court stated that the two offenses at issue were distinguishable by
different elements. Johnson v. State, 61 P.3d 1234, 1238 (Wy. 2003).
¶ 33 Contrary to the State’s argument, the State of Indiana, at least at the appellate court level,
has adopted an identical elements test. See Poling v. Indiana, 853 N.E.2d 1270 (Ind. App.
2006). In Poling, the Indiana court found our constitutional jurisprudence, as set forth in the
Christy case, persuasive and held that Indiana’s proportionate penalties clause was violated
where proof of the same elements could result in different sentences. Id. at 1276-77.2
¶ 34 In sum, we find no inconsistency between the identical elements test and the plain
language of article I, section 11.
¶ 35 The State makes the further argument that our proportionate penalties clause offers the
same protections as the eighth amendment (see People v. McDonald, 168 Ill. 2d 420, 455-56
(1995)), and that the eighth amendment contains only a narrow proportionality principle (see
Ewing v. California, 538 U.S. 11, 20 (2003) (plurality op.)) which does not require that
crimes with identical elements carry identical sentences (see United States v. Batchelder, 442
U.S. 114, 122-23 (1979)). Thus, the State concludes that the identical elements test cannot
stand.
¶ 36 The eighth amendment provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The
eighth amendment is the punishment provision of the federal constitution, just as article I,
section 11, is the punishment provision of the Illinois constitution. McDonald, 168 Ill. 2d at
455. The two provisions are not mirror images. This fact notwithstanding, in McDonald, we
concluded that the framers of our 1970 constitution understood that “article I, section 11 was
synonymous with the cruel and unusual punishment clause of the eighth amendment,” and
as a result, “provides similar protections to those found under the eighth amendment.” Id. at
455-56 (citing 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1380-81
(hereafter cited as Proceedings)). This conclusion is not entirely accurate.
¶ 37 As we have stated, article I, section 11, contains two limitations on penalties: (1)
penalties must be determined “according to the seriousness of the offense” and, (2) penalties
must be determined “with the objective of restoring the offender to useful citizenship.” Ill.
Const. 1970, art. I, § 11. Courts frequently refer to the first requirement as the “proportionate
penalties clause,” a reference to the language contained in our earlier state constitutions that
2
The Indiana legislature revisited the statute at issue in Poling and has eliminated this
constitutional infirmity. Morris v. State, 921 N.E.2d 40, 44 n.2 (Ind. App. 2010).
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“[a]ll penalties shall be proportioned to the nature of the offense.” Ill. Const. 1870, art. II,
§ 11; Ill. Const. 1848, art. XIII, § 14; Ill. Const. 1818, art. VIII, § 14.
¶ 38 The record of proceedings from the Sixth Illinois Constitutional Convention reveals that
the framers of our 1970 constitution initially did not intend to make any substantive or
stylistic changes to the proportionate penalties clause as set forth in the 1870 constitution,
which they understood had been “interpreted synonymously very often with the import of the
cruel and unusual punishment clause.” 3 Proceedings 1380 (statements of Delegate Dvorak,
a member of the Bill of Rights Committee). When the delegates later considered an
amendment to the proportionate penalties clause (3 Proceedings 1391), they understood the
word “proportion” to mean: “the more serious the crime, the more serious the punishment”
(3 Proceedings 1392 (statements of Delegate Foster)). The convention record is silent as to
whether this definition was intended to reflect something different than the cruel and unusual
punishment clause, but the language is certainly different. In line with this definition of
“proportion,” the delegates ultimately approved a change in language from “[a]ll penalties
shall be proportioned to the nature of the offense” (Ill. Const. 1870, art. II, § 11), to “[a]ll
penalties shall be determined *** according to the seriousness of the offense” (Ill. Const.
1970, art. I, § 11).3
¶ 39 As to the second requirement set forth in article I, section 11—that penalties must also
be determined “with the objective of restoring the offender to useful citizenship”—this
language was new to our 1970 constitution. The convention record indicates that the framers
intended, with this additional language, to provide a limitation on penalties beyond those
afforded by the eighth amendment. As explained by delegate Leonard Foster, the architect
of this amendment:
“Traditionally the constitution has stated that a penalty should be proportionate to the
nature of the offense. I feel that with all we’ve learned about penology that
somewhere along the line we ought to indicate that in addition to looking to the act
that the person committed, we also should look at the person who committed the act
and determine to what extent he can be restored to useful citizenship.” 3 Proceedings
1391 (statements of Delegate Foster).
See also 3 Proceedings 1391-92 (statements of Delegate Gertz, chairman of the Bill of Rights
Committee) (“the spirit of the proposed amendment is in accordance with modern
penology”). Foster further explained that under this amendment “some emphasis would have
3
See 3 Proceedings 1396 (delegates’ adoption of the Foster amendment to the proportionate
penalties clause, as amended by the Lennon amendment); 3 Proceedings 2276 (filing of Proposal No.
4, the first of two proposals by the Committee on Style, Drafting and Submission (hereafter Style
Committee) to modify the language in section 11); 4 Proceedings 3635-36 (statements of Delegate
Whalen, chairman of the Style Committee, explaining Proposal No. 4, and the delegates’ adoption
of the proposed changes); 5 Proceedings 4237-38, 4281 (statements of Delegate Whalen explaining
Proposal No. 15, the second proposed language change to section 11 by the Style Committee, and
the delegates’ adoption of the proposed change); 6 Proceedings 212 (Proposal No. 4 by the Style
Committee); 7 Proceedings 2515 (Proposal No. 15 by the Style Committee); 7 Proceedings 2600
(written comments by the Style Committee to Proposal No. 15).
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to be placed on rehabilitation.” 3 Proceedings 1392 (statements of Delegate Foster). When
Illinois voters considered the proposed constitution in December 1970, an explanatory note
to section 11 advised voters that the amended language “adds the requirement that penalties
be determined with the objective of rehabilitating the offender and in accordance with the
seriousness of the offense.” 7 Proceedings 2685.
¶ 40 Based on this review of the convention record, our conclusion in McDonald that “article
I, section 11 was synonymous with the cruel and unusual punishment clause of the eighth
amendment” (McDonald, 168 Ill. 2d at 455) is an overstatement. Although a relationship
may exist between the first clause of article I, section 11, and the eighth amendment, that
relationship is not entirely clear. What is clear is that the limitation on penalties set forth in
the second clause of article I, section 11, which focuses on the objective of rehabilitation,
went beyond the framers’ understanding of the eighth amendment and is not synonymous
with that provision.
¶ 41 With this clarification of McDonald, we return to the State’s argument that the identical
elements test cannot stand because it is inconsistent with eighth amendment jurisprudence.
In support, the State cites the Supreme Court’s opinion in Batchelder. There, the defendant
challenged two overlapping provisions in a federal act that prohibited the same conduct, but
which authorized different maximum penalties. Batchelder, 442 U.S. at 115-16. Although
the Court found “no constitutional infirmities” (id. at 123), the defendant did not raise, and
the Court did not consider, an eighth amendment challenge. Thus, even if we accept that our
proportionate penalties clause is synonymous with the eighth amendment, Batchelder is not
controlling.
¶ 42 Significantly, this court, in the Sharpe opinion, already considered the relevance, if any,
of the Batchelder decision with respect to our proportionate penalties clause jurisprudence.
In Sharpe, we undertook a complete reexamination of the entire body of case law addressing
the proportionate penalties clause and expressly retained the identical elements test. Sharpe,
216 Ill. 2d at 521. We addressed the critics of the identical elements test who, based on
Batchelder, argued that identical offenses with disparate sentences are not constitutionally
infirm. We observed that Batchelder “merely addressed the question under the due process
and equal protection clauses of the United States Constitution,” and that Batchelder “does
not answer whether different penalties for different offenses with identical elements offends
the proportionate penalties clause of the Illinois Constitution.” Id. at 522. The State offers
no reason to retreat from our analysis in Sharpe.
¶ 43 The State makes the additional arguments that the identical elements test is of
“questionable origin,” and the test invades the power of the legislature to assign sentences
to criminal offenses. We disagree.
¶ 44 The identical elements test finds its origin in this court’s 1990 opinion in the Christy
case. There, we held that the penalties for aggravated kidnapping and armed violence
predicated on kidnapping with a category I weapon are constitutionally disproportionate. We
explained:
“Upon review of the relevant statutory provisions it is apparent that the commission
of kidnapping while armed with a ‘knife with a blade of at least 3 inches in length’
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constitutes both aggravated kidnapping and armed violence. Since the elements
which constitute aggravated kidnapping and armed violence are identical, common
sense and sound logic would seemingly dictate that their penalties be identical.
Nevertheless, aggravated kidnapping is a Class 1 felony punishable by ‘not less than
4 years and not more than 15 years’ in prison ***, while armed violence is a Class
X felony punishable by ‘not less than 6 years and not more than 30 years’ in prison
***. As the court below stated, ‘It is illogical that identical [offenses] can render two
different [penalties].’ *** We, therefore, hold that the penalties for aggravated
kidnapping and armed violence are unconstitutionally disproportionate.” (Emphasis
in original.) Christy, 139 Ill. 2d at 181.
¶ 45 Our reliance in Christy on “common sense and sound logic” does not render the identical
elements test of “questionable origin.” Common sense and sound logic need not be strangers
to the law. Indeed, sentencing schemes which penalize identical offenses differently have
been criticized precisely because “[t]here is nothing at all rational” about them. Wayne R.
LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 3.7(a), at 96 (2d ed. 1999).
See also People v. Estrada, 601 P.2d 619, 621 (Colo. 1979) (finding that “a penalty scheme
that provides widely divergent sentences for similar conduct and intent to be irrational”). The
identical elements test is simply a logic-based test to determine whether, consistent with the
plain language of our constitution, the legislature has satisfied the requirement that a penalty
must be determined, in part, “according to the seriousness of the offense” (Ill. Const. 1970,
art. I, § 11).
¶ 46 The State’s additional argument that the identical elements test invades the power of the
legislature to set penalties for criminal offenses overlooks a key feature of the identical
elements test—namely, its complete objectivity:
“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,’ *** the proportionality
review employed in Christy is the most objective and deferential type of review
available to the courts.” Lewis, 175 Ill. 2d at 421-22.
More recently, we relied on these same rationales as a basis for retaining the identical
elements test, but discarding the cross-comparison approach for proportionality review.
Sharpe, 216 Ill. 2d at 522.
¶ 47 The final reason the State advances as to why this court should abandon the identical
elements test is that the test has become unworkable in practice, i.e., application of the test
has produced complicated procedural issues.
¶ 48 The State first contends that by declaring the firearm sentencing enhancements for armed
robbery invalid in Hauschild, we created a new disparity between the penalties for armed
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robbery with a firearm and armed violence predicated on robbery with a category I or
category II weapon. The State explains that, under Hauschild, a defendant convicted of
armed robbery with a firearm is subject only to the unenhanced sentencing range of 6 to 30
years’ imprisonment, whereas a person convicted of armed violence predicated on robbery
with a category I or category II weapon is subject to a term of 15 to 30 years’ imprisonment.
Thus, as a result of declaring the enhanced sentence for armed robbery with a firearm
unconstitutional under our proportionate penalties clause, the armed violence statute now
suffers from the same constitutional infirmity. That is, the sentence for armed violence
predicated on robbery with a category I or II weapon is now greater than the identical offense
of armed robbery with a firearm.
¶ 49 As already discussed, Public Act 95-688, which became effective October 23, 2007,
eliminates any overlap between armed robbery and armed violence. Further, the State
conceded at oral argument that relatively few cases are still pending which arose during the
period of time that the two statutes overlapped. The probability that the defendants in any of
these cases could argue that the sentence for armed violence violates the proportionate
penalties clause is exceedingly low because, at the time of their prosecutions, armed robbery
with a firearm would have carried the more severe punishment, and the defendants likely
would have been prosecuted under that statute, not the armed violence statute.
¶ 50 These observations aside, and without regard to how this court would rule in such a case,
we disagree with the State that the mere opportunity for a defendant to raise a new
constitutional issue necessarily means that the identical elements test is unworkable. Indeed,
we are confident that a reviewing court confronted with the scenario described by the
State—should it ever arise outside of the State’s brief—will be able to apply the identical
elements test with relative ease and objectivity.
¶ 51 The State identifies another procedural issue purportedly arising as a result of the
identical elements test as applied in Hauschild. The State’s argument proceeds along the
following lines: Hauschild found the firearm sentencing enhancements for armed robbery
violated the proportionate penalties clause, rendering the sentencing enhancements void ab
initio. The legislature, when it adopted Public Act 95-688 in response to Hauschild,
eliminated robbery as a predicate felony for armed violence, but did not reenact the
sentencing enhancements for armed robbery. Thus, if armed robbery with a firearm cannot
be prosecuted under the armed violence statute, and the sentencing enhancements under the
armed robbery statute are no longer operable and have not been reenacted, then prosecutors
cannot obtain an enhanced sentence for a person who uses a firearm during the course of an
armed robbery. This result, the State argues, is contrary to the legislature’s intent to curtail
the harms posed by firearms.
¶ 52 The State’s argument does not implicate the workability of the identical elements test;
it implicates the work of the General Assembly. If the State is correct that it can no longer
obtain an enhanced sentence for armed robbery with a firearm, then the solution to this
perceived problem is for the legislature to engage in more careful drafting, both as an initial
matter, and in response to our opinions; the solution is not for this court to abandon the
identical elements test—a straightforward, bright-line, objective test. See Martin H. Tish,
Comment: Duplicative Statutes, Prosecutorial Discretion, and the Illinois Armed Violence
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Statute, 71 J. Crim. L. & Criminology 226, 243 (1980) (recognizing the role that “careful
drafting” serves in preventing the adoption of statutory schemes that overlap and punish the
same conduct differently); Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal
Procedure § 3.7(a), at 96 (2d ed. 1999) (same).
¶ 53 Because the State has failed to demonstrate “good cause” or identify “compelling
reasons” for departing from stare decisis (Vitro, 209 Ill. 2d at 82), we decline to overrule
Christy and its progeny, and decline to abandon the identical elements test as a part of our
proportionate penalties clause jurisprudence.
¶ 54 V
¶ 55 The State’s final argument on appeal concerns the appropriate remedy in this case.
¶ 56 In Hauschild, we held that “when an amended sentencing statute has been found to
violate the proportionate penalties clause, the proper remedy is to remand for resentencing
in accordance with the statute as it existed prior to the amendment.” Hauschild, 226 Ill. 2d
at 88. The appellate court, in accordance with Hauschild, vacated defendant’s 25-year
sentence for armed robbery while armed with a firearm and remanded the cause to the trial
court for resentencing under the armed robbery statute as it existed prior to the adoption of
the sentencing enhancements. No. 4-06-0823 (Nov. 26, 2008) (unpublished order under
Supreme Court Rule 23). Thus, on remand, defendant would be subject to a sentencing range
of 6 to 30 years’ imprisonment, rather than a range of 21 to 45 years’ imprisonment.
Compare 720 ILCS 5/18-2 (West 1998), with 720 ILCS 5/18-2(b) (West 2006).
¶ 57 The State argues that the reduced sentencing range, which is less than the sentencing
range of 15 to 30 years’ imprisonment for armed violence based on robbery with a category
I or category II weapon (720 ILCS 5/33A-3(a) (West 2006)), would violate the plain intent
of the General Assembly. The State urges this court to adopt the “identical offense
sentencing doctrine” utilized by Kansas courts. See State v. Thompson, 200 P.3d 22 (Kan.
2008). Under this doctrine, which is part of that state’s due process jurisprudence, if the
elements of overlapping statutory provisions are identical, “a defendant may only be
sentenced to the lesser punishment provided for in the identical, overlapping provisions.” Id.
at 36. Application of the doctrine in this case would result in defendant being sentenced
under the armed violence statute, subjecting him to a sentencing range of 15 to 30 years’
imprisonment.
¶ 58 We recognize that, under our analyses in Lewis and Hauschild, armed violence predicated
on robbery with a category I or category II weapon has the identical elements as armed
robbery while armed with a firearm. Defendant, however, was not charged and convicted
under the armed violence statute, and the State cites no authority for the proposition that the
charging instrument may be modified on appeal so that the State may proceed under a
different statute that imposes a more severe penalty. The State elected to prosecute defendant
under the armed robbery statute. Defendant, having been convicted of that offense, must be
sentenced pursuant to the armed robbery statute.
¶ 59 We are cognizant that, in the Christy case, we affirmed the judgment of the appellate
court, which vacated the defendant’s conviction and sentence for armed violence and
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remanded the cause for sentencing on the identical, uncharged offense of aggravated
kidnapping, which, at that time, carried a lesser penalty. Christy, 139 Ill. 2d at 174, 181.
Unlike Hauschild, however, Christy contains no discussion or analysis of the appropriate
remedy, and for this reason, Christy is not controlling.
¶ 60 On remand, defendant must be sentenced in accordance with the armed robbery statute
as it existed prior to the adoption of the enhanced sentencing provisions. Thus, defendant will
be subject to a sentencing range of 6 to 30 years’ imprisonment (see 720 ILCS 5/18-2 (West
1998); 730 ILCS 5/5-8-1(a)(3) (West 1998)), which, as previously ordered by the trial court,
will be served concurrently with defendant’s 25-year sentence for home invasion.
¶ 61 CONCLUSION
¶ 62 For the reasons stated, we decline to overrule Hauschild, and decline to abandon the
identical elements test. We affirm the judgment of the appellate court and remand this matter
to the trial court for resentencing.
¶ 63 Affirmed.
¶ 64 CHIEF JUSTICE KILBRIDE, specially concurring:
¶ 65 The identical elements test for a proportionate penalties challenge has been recognized
and applied in Illinois for over two decades. See People v. Christy, 139 Ill. 2d 172 (1990)
(the first case from this court applying the test). The constitutional basis of the test is the
requirement in article I, section 11, of the Illinois Constitution that all penalties must be
determined “according to the seriousness of the offense.” Ill. Const. 1970, art. I, § 11.
Essentially, the test prohibits the legislature from creating different sentencing ranges for
criminal offenses with identical elements. Supra ¶ 30. The fundamental requirement of the
test, therefore, is that identical criminal offenses must have identical sentencing ranges. See
People v. Sharpe, 216 Ill. 2d 481, 522 (2005) (concluding that “[i]f the legislature determines
that the exact same elements merit two different penalties, then one of these penalties has not
been set in accordance with the seriousness of the offense”).
¶ 66 Although I believe that the State raises valid criticisms of the identical elements test, I
ultimately agree with the majority that the State has failed to meet its burden to demonstrate
“good cause” or identify “compelling reasons” for departing from stare decisis. Supra ¶ 53.
Thus, I agree with the majority’s decision to retain the identical elements test. Similarly, I
further agree with the majority’s rejection of the State’s substantive challenge to our decision
and application of the test in People v. Hauschild, 226 Ill. 2d 63 (2007). Supra ¶ 26.
¶ 67 While principles of stare decisis justify the majority’s decision to preserve the identical
elements test and affirm the appellate court’s judgment here, I nonetheless believe that this
court should modify its approach to remanding for resentencing when a defendant
successfully raises a proportionate penalties challenge under the identical elements test.
¶ 68 Under the majority’s approach, also applied in Hauschild, when a sentencing statute for
a criminal offense is found to differ from another sentencing statute for an identical criminal
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offense, the court strikes the entire statute with the higher sentencing range, regardless of any
overlap between the two statutes. Supra ¶¶ 56-60. In Hauschild, for example, this court held
that the enhanced sentencing range for armed robbery while armed with a firearm, 21 to 45
years’ imprisonment, was unconstitutionally disproportionate when compared to the
sentencing range of the identical offense of armed violence predicated on robbery with a
category I weapon, 15 to 30 years’ imprisonment. Striking the entire enhanced sentencing
statute for armed robbery as unconstitutionally disproportionate, this court remanded for
resentencing under the preamended version of the armed robbery statute, providing a
sentencing range of 6 to 30 years’ imprisonment. Hauschild, 226 Ill. 2d at 86-87.
¶ 69 The problem with this approach, in my opinion, is that it illogically strikes an entire
sentencing statute as unconstitutionally disproportionate even though the statute may overlap
significantly with the comparison statute. As the majority instructs, however, “[c]ommon
sense and sound logic need not be strangers to the law.” Supra ¶ 45; see also Christy, 139 Ill.
2d at 181 (concluding that “common sense and sound logic” require that identical crimes
have identical penalties). In my view, common sense and logic require this court to uphold
the constitutionality of the overlapping portion of the two sentencing statutes analyzed under
the identical elements test. Only if there is no overlap between the two sentencing statutes
should this court declare an entire sentencing statute unconstitutional under the identical
elements test. See People v. Dabbs, 239 Ill. 2d 277, 291 (2010) (noting that “this court has
a duty to uphold the constitutionality of a statute if it is reasonably possible to do so”).
¶ 70 Here, the applicable statutes provide an enhanced sentencing range of 21 to 45 years for
armed robbery while armed with a firearm (720 ILCS 5/18-2(a)(2), (b) (West 2006)) and a
sentencing range of 15 to 30 years for the identical offense of armed violence predicated on
robbery with a category I weapon (720 ILCS 5/33A-3(a) (West 2006)). The shared
sentencing ranges for the two offenses are 21 to 30 years, and I believe that this should be
the applicable sentencing range on remand because that sentencing range is identical for both
offenses. Preserving the overlapping sentencing range by upholding the constitutionality of
the statutes’ shared portions, i.e., the identical portions, is logical and entirely consistent with
the fundamental goal of the identical elements test, namely, to guarantee that identical
criminal offenses have identical sentencing ranges.
¶ 71 Accordingly, although I agree with the majority’s decision to preserve the identical
elements test and affirm the appellate court’s judgment, I would modify our approach on
remand when a defendant successfully raises a proportionate penalties challenge under the
identical elements test. Rather than striking the entire enhanced sentencing statute as
unconstitutional and remanding for sentencing under the prior version, I would remand with
instructions for the trial court to resentence defendant from a sentencing range that consists
of the identical overlapping sentencing range of the applicable statutes, here a sentencing
range of 21 to 30 years. Compare 720 ILCS 5/18-2(a)(2), (b) (West 2006), with 720 ILCS
5/33A-3(a) (West 2006).
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