## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Lauderdale , 2012 IL App (1st) 100939

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. VERNON LAUDERDAL E, Def endant- Appellant.

District & N o. First District, F ifth Division Docke t No. 1-10-0939

Filed Rehea ringdenied Marc h 23, 2012

May 2, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) D e f e n d a nt’ s c o nv ic ti o n for attempted first degree murder and his sentenc e to 31 y ear s’ impris o n m en t , including a 25-year enhanc ement for
persona lly discharg ing a firea rm that cause d g reat bodily harm to another
person, wer e upheld over his contentions that his counsel was ineffe ctive in failing to ask that defe ndant be sentenc ed under section 8-4(c )(1) (E) of the Unified Code of Correc tions allowing him to be sentenc ed for a Class 1 felony
, rathe r than a C l as s X felony
, if he proved he acte d under a sudden and intense passion resulting from serious provocation and that the firear m en hance ment provision of the attempted murder statute violated the proportionate penalties clause
, since defe ndant’s reta liation from the victim’s single punch to defe ndant’s jaw was out of proportion
to the victim’s conduct, espec ially when defe ndant shot the victim three times at close rang e, and the challeng e to the firea rm enh an cement provision for attempted first degree murder has alre ady been reje cted by the I llinois Supreme Court.

Dec ision Under Review Appea l from the Circuit Court of C o o k County
, No. 08-CR-14331; the Hon. J oseph M. Claps, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and L a Roi Wil liams, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Miles J

. Kelehe r, and Kalia M. Coleman, Assistant State’s Attorney s, o f counsel), f

or the People.

Panel J USTI CE Mc BRI DE deliver ed the judgme nt of the court, with opinion. Presiding J ustice Epst ein and Justi ce H owse concurr ed in the j udg ment and opinion.

OP INION

¶ 1 Following a bench trial, d e fenda nt Ver non L auder dale was found guilty of attempted first d egr ee m u rd er. At sentenc ing, the trial court imposed a term of 31 y ear s’ imprisonment, which included an additional term o f 2 5 y ear s for persona lly discharg ing a firea rm that proxi mately cause d g rea

t bodily harm to another person. Def endant appea ls, arguing that he

rec eived ineffe ctive assistance of trial counsel beca use his attorney failed to reque st the trial
court to sentenc e defe ndant under section 8-4(c )(1) (E) of the Criminal C o de of 1961 ( Cr im in a l Co d e ) ( 7 20 I L CS 5/8-4(c) (1)( E) (West 2010)). Section 8-4(c )(1) (E) allows the tri a l
court to sentenc e a defe ndant for a Class 1 felony
, as opposed to a Class X felony
, i f at sentenc ing t h e d ef

en d an t proves by a preponde ranc e of the evidenc e that at the time of attempted murder, the defe ndant was acting under a sudden and intense passi o n resulting from serious provoca

tion. Def endant also contends that the firea rm enhanc ement provision

o f t h e attempted murder statute violates the proportionate penalties clause of the I llinois Constitution. ¶ 2 Def

endant was char g ed by indictment with two counts of attempted first degree murder,

one count of ag g ravated battery with a firea rm, and two counts of unlawful use of a wea pon. Prior to trial, the State elec ted to nol-pros the two c ounts of unlawful use of a we apon. ¶ 3 Def

endant’ s bench tria l beg an in J uly 2009, and the f

ollowing e vidence was a dduced. ¶ 4 Prentis Smith testified that he was a former member of the Mickey Cobra street g ang . He joined in 1978 when he was eig ht y ear s old and left the g ang in 1996. Whil e in the g ang , he achie ved the rank of a “princ e.” He identified defe ndant in court as someone he had known fo r 2 0 y ears. Smit h was best friends with defe ndant’s brother. S mith admitted that he wa s convicted of

home invasion in 1998. ¶ 5 On the afte rnoon of J uly 20, 2008, Smit h test i fi ed t h at h e was “on Sedg wick in the Cabrini are a.” He was in a parking lot with his 16-year -old cousin Deondr e Daley and Ry an

-2-Myles. Daley is also defe ndant’s nephew

. During the afte rnoon, at around 2 or 3 p.m., Smit h

“had words” wi t h a man called “Shooter.” Smit h tried to punch Shooter, but missed and Shooter ran. Smith stated that the dispute was over selling drug s in th e p ar k i n g l o t. As Shooter left t h e parking lot, Smith observe d Shooter make a phone call, but did not know whom Shooter ca lled. ¶ 6 L ater , at approximately 10 p.m. that night, Smit h testified that he was in the parkinglot with Daley and My les. Smit h and Daley had remained in the parking lot continuously , but Myles had left and returne d. He stated that there wer e “quite a few people in the parking lot.” Smit h said it was dark outside, but there wer e lights on two buildings around the parking lot. Smit h observe d a confr ontation betwee n defe ndant and Daley

. Def endant said that it was his parking lot. Smith asked if they moved to Dominick’s, was t h at d ef endant’ s too, and defe ndant res p o n d ed that it was. Smit h stated that defe ndant pushed Daley to the g round. Smit h then punche d defe ndant in the jaw. Smith denied havingany wea pons on him. ¶ 7 After Smith punched him, defe ndant rea ched to his left side and pulled out a dark- colore d .32-ca liber revolve r. Smit h t es t ified that he was standing approximately two fee t from defe ndant, that they wer e “close enough to touch.” Smit h stated that defe ndant aimed the gun at Smit h’s chest and pulled the trig g er two times, but the gun did not fire. Smith testified that he said to defe ndant, “somebody [gave ] you a gun with no bullets.” Def endant then stepped back and aimed for Smit h’s left leg and shot him in the left leg

. Def endant then shot Smith in the rig ht l eg. Def

endant aimed the gun at Smit h’s chest and Smit h turned to the side as defe ndant shot Smit h in the shoulder. Smit h stated that he “turne d to the side to avoid g etting shot in [hi s] hear

t.” Smit h estimated that defe ndant was three fee t awa y from him when the shooting occur

red. Smit h stated that all three shots wer e fired in less than five seconds. Smit h testified that he sto o d there in shock. He said defe ndant “took off running ” and “wa s hollering , ‘Cobra c razy .’ ” ¶ 8 Smit h testified that he started to run toward Evergree n, but he blacke d out and fell to the
g round. He stated t hat Daley , Myles and Shawn Chil ds put him in the backseat of Smit h’s

car and took him to the L incoln Park Hospital. He was later transfe rre d to I llinois Masonic Hospital and treated for three gunshot wounds. He stated that he still has two bullets lodge d in his body

. ¶ 9 The next day
, J uly 21, 2008, Smit h spoke with the police at the hospital and he told them that defe ndant shot him. Smit h was later shown a photo arr ay and he identified defe ndant in the arr ay

. L ater , in April 2009, Smit h testified that he visited defe ndant in the Cook County jail with defe ndant’s mother and cousin. Smit h stated that defe ndant apolog ized and said he did not mean to shoot Smit h in the chest and wa s n o t trying to kill Smit h. Acc ording to Smit h, defe ndant said defe ndant would “take car e of me [S mith] if I drop [ sic ] the char g es.” Smit h interpre ted this to mean money . Smith had no fur ther c ontact with def

endant. ¶ 10 Detec tive Marc L eavitt testified that on Jul y 20, 2008, he was assigned to inve stigate a

s hooting. He met with Smit h at the hospital and Smit h told him that defe ndant wa s t h e person who shot him. On J uly 21, 200 8
, t h e d et ective met with defe ndant in custody

. He advised defe ndant of his Miranda rig hts and defe ndant agree d to speak wi th him and his partne r. Detec tive L eavitt asked defe ndant if he belong ed to a g ang and defe ndant responde d

-3-that he used to be a Micke y Cobra. ¶ 11 Chandra Be ll testified that on J uly 20, 2008, at around 9 p.m., she was in the are a of 1300 North Sedg wick in Chicag o. She was in the are a to visit her mother and to look for her two

sons. She found her sons in the parking lot on Sedg wick. After she spoke with her sons, Be ll talked to Smi th for about f ive minutes. Be ll stated that she had known Smith all of her life and had known defe ndant for 15 y ear s. Be ll observe d defe ndant walk up to Smith, but s he

was unable to hear what they wer e saying and was not pay ing attention to them. Be ll was walking toward her mother’s house whe n s h e hear d shots fired. She said she ran and saw defe ndant run n i n g 25 to 30 fee t awa y from her with something in his hand, but she was unable to see what it was. B ell also saw Smith being put into a c ar. ¶ 12 Following Be ll’s testimony
, the State rested. Ry an Myles testified for the defe nse. Myles admitted that at the time of his testimony , he wa s in custody for “ a drugchar g e,” serving a sentenc e of four y ear s in the I llinois Depa rtment of Correc tions. Myles stated that he had known Smith for about two y ear s and Smit h is his g odmother’s cousin. He s ai d h e knew defe ndant the same way . Myles has known Da ley his whole life. ¶ 13 On J uly 20, 2008, Myles testified that he was at 1365 North Hudson, which he estimated is about a block and a half from 1310 North S edgwick. My les denied being i n the parking lot with Smit h that afte rnoon. He denied seeing an alterc ation betwee n defe ndant and Smit h. Whil e at the Hudson addre ss, Myles hear d gunshots at around 10 p.m. Myles then beg an running in the direc tion of the shots. He stated that he went toward the gun shots beca use he wanted to c heck on Daley . Myles ran toward Evergree n and Sedg wick. He then saw Smit h

on the g round. He did not see anyone with Smit h. Myles went to g et Smit h’s car and then he saw Da ley

and Shawn Childs “comingout.” They helped Myles put Smi th in the car

. ¶ 14 The de fense then ca lled Kizz y McRay to testify about her knowledg e of de fenda nt and Smit h as well as her knowledg e of t h e M i ckey Cobra gang

. The S tate objected t o this line of questioning as McRay was not a member of the g ang

. The trial court allowed the State to voir dire McRay on her qualifications as an ex pert in Chicag o g ang s. McRay was allowed to testify

. ¶ 15 McRay testified that she is de fenda nt’s older sister. She has also known Smit h for over 20 y ea rs an d h e is a close friend. Smit h was best friends with her dece ased older brother, L eon Daley

. McRay stated that L eon was a member of the Mickey Cobra g ang and he held the rank of “supre me.” McRay lear ned about the g ang signs display ed by the Mickey Cobras by being around her brother and his friends. She did not know of “any o f [ defe ndant’s] involvement in beinga Micke y Cobra.” ¶ 16 McRay identified various g angsigns displayed by Smith in three pic tures pre sented by the defense. McRay testified t hat S mith was sti ll a member of t he Mi ckey Cobras. McRay then stated that Smit h came to her house in J une and J uly 2008 seeking to rec ruit her son into the g ang

. McRay admitted that she wa s not present at the time of the shooting a nd that she told the i n v es t i gat or from the public defe nder’ s office that she did not believe defe ndant committed the shooting. F ollowing Mc Ray ’s testimony , the def ense r ested. ¶ 17 In Dec ember 2009, afte r closing arguments, the trial court fo u n d d efendant guilty of attempted first degree murder. The cou rt also deter mined that defe ndant persona lly

-4-discharg ed a firea rm that proxi mately

cause d g reat bodily

harm to Smith. I

n J anuar y 2010, defe ndant filed a “motion to rec onsider or in the alternative for a new trial,” which the trial court de nied. ¶ 18 At the Fe bruar y 2010 sentenc ing hear ing, the trial court hear d evidenc e in ag g ravation, including a victim impact statement from Smit h and d ef endant’ s prior convictions, one misdemeanor and four felo n i es. In mitigation, the defe nse prese nted the testimony of defe ndant’s mother and noted that defe ndant worke d consist ently and had committed no other offe nses since 2002. After considering this evidenc e, the trial court imposed a sentenc e of 31 y ear s’ imprisonment, which included a 2 5

- ye a r e n h a n c e ment f o r persona lly discharg ing

a firea rm that proxi mately cause d g reat bodily harm to Smit h. Whil e imposing the sentenc e, the trial cour

t stated:
“I ’ve consider ed the fac tors in ag gravation and mitigation. I ’ve considere d the
argument s o f co unsel. I ’ve considere d the testimony of Mrs. L auder dale. And I ’ve considere d g reatly

Mr. Ver non L auder dale’ s remar

ks.
Mr. L auder dale, I truly wish there was a crime called attempt second degree murder. I wish there was. I wish the leg islature in this and other case s would have the confide nce in the judicial sy stem, in the judiciary
, to g iv e fre edom to judge s to make sentenc es specific for the c rimes committed in consideration with the backgrounds of def endants and the fac ts of the case s, and the fac tors in mitigation and ag g ravat i o n, To me, that would be true fairne ss. The legislature has saw fit [ sic ], and I ’m not sayi n g or sugg esting the l eg islature is not justified, g iven the violence that happens e ach a nd ever yday
, to e nhance sentenc es, but there a

re w ay s to enhanc e sente nces that would give judge s more free dom to car ve out sentenc es that ar e m o re repr esentative of the crime and the background of the offe nder.
Fr om a persona l standpoint, I don’t believe th at wh at they ’ve done, this particula r statute does that, but I am bound by the law. There is not h ing I can do. Wit hout the enhanc ement your sentenc e would not be the se ntence that Iam mandate d to give y ou. I ’ll also state for the rec ord that g iven your background and the actions, 6 y ear s would not be the minimum–it’s the minimum sentenc e. That’s not what I would sentenc e y ou to. But I also wouldn’t sentenc e you to what the minimum is require d by law, which is 31 y ear s. But I am obliga

ted to do that. I have no choice but to g ive you, at a minimum
, that sentenc e.” ¶ 19 Def

endant filed a mot ion to rec onsider his sentenc e, which the t rial cou rt d en i ed. This
appea l followed. ¶ 20 On appea l, defe ndant argues that his trial counsel was ineffe ctive for failing to argue that defe ndant was elig ible for sentenc ing under section 8-4(c )(1) (E) of the Criminal Code of 1961 (720 I L CS 5/8-4(c) (1)( E) (West 2010)). Specifica lly
, defe ndant asser ts that, pursuant to section 8-4(c )(1) (E), his trial attorney could have shown by a preponde ra n ce of the evidenc e that defe ndant was acting under a sudden and intense passion resulting from serious
provoca t i o n at t h e time he shot Smit h, and the trial court would have sentenc ed him for a nonenhanc ed Class 1 felony

. The State maintains that defe ndant’s claim of ineffe ctive

-5-assistance of trial counsel lacks merit beca use defe ndant would be ineligible for sentenc ing under section 8-4(c )(1) (E) since the evidenc e would not support a finding that defe ndant was actingunder a

sudden and intense passion resultingfrom ser ious provocation. ¶ 21 Claims of i neff ective assistance of counsel are resolved under the s t an d ard set forth in Strickland v. W

ashington
, 466 U.S. 668 (1984). In Strickland
, the Supreme Court delineate d

a two-par t test to use when evaluating whether a d ef endant was denied the eff ective assistance of counsel in violation of t h e six th amendment. Under Strickland
, a defe ndant
must demonstrat e t h at counsel’s perf ormanc e was defic ient and that such defic ient perf ormanc e su

b s ta ntially prejudice d defe ndant. Strickland
, 466 U.S. at 687. To demonstrate perf ormanc e defic iency
, a defe ndant must establish that counsel’s perf ormanc e fell below

an objective standard of rea sonablene ss. People v. Edwards
, 195 I ll. 2d 142, 163 (2001). In evaluating sufficie nt prejudice
, “[t] he defe ndant must show that there is a rea s o n ab l e probability that, but for counsel’s unprofe ssional e rror s, the result of the proce eding would have been differ ent. A rea sonable probability is a probab i l i t y s ufficie nt to undermine confide nce in the outcome.” Strickland
, 466 U.S. at 694. I f a case may be disposed of on the
g round of lack of suff

i ci en t prejudice
, that course should be taken, and the court need not

ever consider the quality

of the attorney ’s per formanc e. Strickland , 466 U.S. at 697. ¶ 22 Section 8-4(c )(1) (E), which bec ame e ffe ctive January 1, 2010, provides: “[I ]f the defe ndant proves by a preponde ranc e of the evidenc e at sentenc ing that, at the time of the attempted murde r, he or she was acting under a sudden and intense passion resulting from serious provocation by the individual whom the defe ndant endea vored to kill, or an o t her, and, had the individual the defe ndant endea vored to kill died, the defe ndant would have neg lige ntly or acc identally cause d that death, then the sentenc e for the attempted murder is t h e s entence for a Class 1 felony [.] ” 720 I L CS 5/8-4(c) (1)( E) (West 2010). ¶ 23 This languag e is substantially simil ar to the statutory languag e for one of the g rounds for second degree murder. See 720 I L CS 5/9-2(a) (1) (West 2010) (“at the time of the killing he

or she is acting under a sudden and intense passion resulting from serious provocation by the individual kill ed or a

nother whom the of

fende r ende avors to kil l, but he or she ne g lige ntly or accidenta lly ca u s es the death of t he indi vidual killed”). S ince no case s have considere d “sudden and intense passion resulting from serious provocation” under section 8-4(c )(1) (E),

we turn to case s that have considere d serious provocation in reduc ing first degree murder to second de g ree murder. ¶ 24 The Criminal C o d e d o es n o t o u t l i n e what circ umstances or cate g ories of ser ious
provocation would reduc e firs t d egr ee to second degree murder. People v. Sutton
, 353 I ll. App. 3d 487, 491 (2004). Howeve r, the I llinois Supreme Court h as rec og nized that “for
purposes of reduc ing first degree murder based on serious provocation, the ‘ “only cate g ories of serious provoca

tion which have been rec og nized are : ‘subs tantial phy sical injury or assault, mutual quarr el or combat, illega l arr est, and adultery with the offe nder’ s spouse; but
not mere words or g estures or trespass to pr operty .’ [C itation.] ” ’ ” Sutton
, 353 I ll. App. 3d
at 491 (quoting People v. Chevalier
, 131 I ll. 2d 66, 71 (1989), quoting People v. Crews
, 38 I ll. 2d 331, 335 (1967)).

-6-¶ 25 Her e, there was no evidenc e at trial that defe ndant suffe red a “substantial phy sical injury

or assa ult” as a result of one punch to the j aw by Smit h nor has de fenda

nt raised this basis

on appea l. Instead, the parties focus on the mutual combat cate g ory of serious provocation. ¶ 26 “Mutual combat is a fig ht or strug g le wh i ch b o t h parties enter willingly or wher e two persons, upon a sudden quarr el and in hot blood, mutually fight upon equal terms and wher e death results from the combat.” People v. Austin
, 133 I ll. 2d 118, 125 (1989). “In considering whe t h er d ef

endants have met the threshold burden of proving some evidenc e of mutual combat, it has been held that the alleg ed provocation on the part of the victim must cause the

same passionate state of mind in an ordinary person under the same circ umstances. A slight
provocation is not enough, beca use the provocation must be proportionate to the manner in which the acc used reta liated. The crime is murder when a defe ndant attacks a victim with violence out of all proportion to the provocation.” Austin
, 133 I ll. 2d at 126-27. “The re is no mutual combat wher e the manner in which the acc used reta liates is out of a ll proportion to the provocation, pa

rticularly wher e homicide is c ommitt ed with a deadly wea pon.” Sutton
, 353 I ll. App. 3d at 496. ¶ 27 Def

endant argues that the evidenc e supports his asser tion that his at t orney could have shown by a preponde ranc e of the evidenc e that d ef en d ant was acting under a sudden and intense passion resulting from seriou s p rovocation when he shot Smit h. Def endant notes Smit h’s rank in the M ickey Cobras and the altercation wit h “Shooter” ear lier in the day as support for defendant’s actions. Howeve r, there was no evidenc e that defe ndant had any kn o wledg e of Smit h’s interac tion with “Shooter.” Def endant also argues that phy sically
, Smit h was much larg er than defe ndant. Def endant bases this argument on Smith’s testimony descr ibing defenda

nt as approx imately 5 fee t 7 inches and weighing approximately 135 to 140 pounds wh i l e S m i th descr ibed himself as 6 fee t 1 inch and 230 pounds. Howeve r, defe ndant’s arr est repor

t, which is included in the rec ord, states that defe ndant was 5 fee t 9 inches a nd weighed 265 pounds. Def endant has not argued mutual combat, but instead his
argument is more in line with second d egr ee m u rd er that is not included in section 8- 4(c) (1)( E), an unr easona

ble belief that the defe ndant believes the circ umstances to be such that, if they exis ted, would justify or exonerate the killing. See 720 I L CS 5/9-2(a) (2) (West 2010). Section 8-4(c )(1) (E) does not provide for a mitigated sentenc e based on unrea sonable belief. See 720 I L CS 5/ 8-4(c )(1) (E) ( West 2010). ¶ 28 The rec ord ref utes defe ndant’s claim of serious provocation. The evidenc e prese nted at
t ri al s howed that defe ndant approa ched Smit h and Daley

. Def endant pushed Daley to the
g round and then Smit h punched defe ndant in the jaw. In reta liation, de fenda nt pulled out a gun and fired it at Smit h five times. The gun did not fire the first two times defe ndant pulled the trig g er. Smit h asked defe ndant if someone g ave him a gun with no bullets. Def endant then aimed the gun at Smit h’s left leg and this time the gun fired. Def endant next shot Smit h in the rig ht leg

. Def

endant raised the gun and aimed at Smit h’s chest. Smit h turned to avoid beingstruck in the hea

rt and wa s shot in the left shoulder. De fenda nt then fled the sc ene. ¶ 29 There was no mutual combat as the fig ht was not on equal terms. The evidenc e showe d that only defe ndant was arme d with a deadly wea pon. Smit h punched defe ndant one time. Def endant’ s response of pulling out a gun and firing it multiple times, striking Smit h three times, was “out of a ll proportion” to Smit h’s provoc ation.

-7-¶ 30 In Austin
, the defe ndant boarde d a Chicag o Transit Authority bus and g ot into a dispute

with the bus driver over the far e. The evidenc e at trial was unclea r if the dispute was beca

use defe ndant t ri ed t o u s e a discounted student pass on a holi day or i f t he defenda nt soug ht to take a bus transfe r without sufficie nt pay ment. Reg ardle ss, the defe ndant g ot into a phy sical fig ht with the bus driver. The two women exchang ed blows for about 30 to 40 seconds. The defe ndant pulled a gun from her waistband and fire d i t into the floor of the bus. The bus driver was able to forc e the defe ndant off the bus, but while both wer e off the bus, the defe ndant shot and killed the bus driver. The defe ndant fled, but later returne d to retrie ve her bag from the bus and fled ag ain. The defe ndant testified that she did not intend to shoot the bus driver. Austin , 133 I ll. 2d at 122-23. ¶ 31 The supreme court declined to find evidenc e of mutual combat beca use the bus driver did
not enter the fig ht willingly and the fig ht was not on equal terms. Austin
, 133 I ll. 2d at 125. “The rec ord in this case indicates that defe ndant shot a nd killed an unar

med victim who provoked defe ndant by speaking g ruff ly to her a nd striking he r on the hand with a transfe r punch. At the most, the victim provoked defe ndant by eng ag ing in a ‘fa irly even’ fistfig ht for 30 to 40 seconds and forc ing her off the bus. Def endant testified that she was afr aid and wanted to cea se t h e al t erc ation with the bus driver. There is nothing in the

rec ord, however, t o o b

j ectively indicate that defe ndant had rea son to fea r for her life. Shooting the driver was an act completely out of proportion to the provocation. There fore , mutual combat ca nnot apply .” Austin , 133 I ll. 2d at 127. ¶ 32 In Sutton
, the defe ndant cont en d ed o n appeal that his trial counsel was ineffe ctive for failing to reque st an ins truction on second deg ree m urder based on mutual combat. I n that

case , the defe ndant and the victim had been in a romantic relationship. The defe ndant went to see the victim at h er m o t h er ’s hous e and they beg an to argue. During the argument, the victim told the defe ndant that he was not the fathe r of her son. The victim picked up a roller skate and the defe ndant picked up a knife. In a statement, the defe ndant stated that he knew the victim would not hit him with the skate, but at trial, he testified that she hit him with the skate. The defe ndant then stabbed the victim in the side. They continued to strug g le as they moved to the bedroom, wher e the defe ndant co n tinued to stab the victim. Sutton
, 353 I ll. App. 3d at 489. ¶ 33 The revie wing court found that the rec ord did not support the defe ndant’s arg ument that his attorney should have reque sted a mut u al co mbat instruction. The contac t betwee n the defe ndant and the victim was not on equal terms and the defe ndant’s response was out of all proportion. Sutton , 353 I ll. App. 3d at 496.
“De fenda nt responde d to alleg edly being hit by the victim with a roller skate by stabbing the victim 23 times, and 9 of those stab wounds wer e to her back. The rec ord ref lects that the manner in which the defe ndant reta liated was completely out of all proportion to the words and contac t made by the victim. Def endant admitted on cross-e x amination that he knew the victim would not kill him or put him in the hos pital by str i k i ng him with the roller skate. I f defe ndant and victim had mutually eng ag ed in comb at, defe ndant
reta liated out of all p roportion to the victim’s conduct, neg ating a mutual combat instruction.” Sutton , 353 I ll. App. 3d at 496.

-8-¶ 34 In the instant c ase, the manner in which defe ndant reta liated from a single punch to the

jaw was completely out of all proportion to Smit h’s conduct and belies defe ndant’s argument that h e ac t ed out of serious and intense passion from serious provocation. There was no

m u t u al co mbat betwee n defe ndant and Smit h when Smith struck defe ndant once and defe ndant responde d by pulling out a firea rm and shooting Smith multipl e ti mes. The evidenc e does not support a finding that defe ndant acte d under a sudden and intense passion resulting from serious provoca tion. T h u s , section 8-4(c )(1) (E) was not applicable to defe ndant’s con du ct. Since defe ndant could not have been sentenc ed under section 8- 4(c) (1)( E), defe ndant cannot show how he was prejudice d by his attorney ’s decision not to argue for its application. Whil e the trial court’s comments at sentenc ing indicate a desire for

more discretion in the sentenc e to be imposed on defe ndant, the evidenc e at t ri al does not support a finding t hat defendant acted “under a s u d d en and int ense passion resulting from serious provocation.” Def endant cannot show that a rea sonable probability ex ists that the result of the proce eding would have been differ ent had counsel ref ere nced section 8- 4(c) (1)( E) beca

use this section does not apply under the fac ts of this c ase. Acc ording ly
, we conclude that defe ndant’s trial c ounsel was not inef fec tive. ¶ 35 Def

endant furt h er co n t en d s that his trial counsel’s “conc ession” that defe ndant was subject to the 2 5 -y ear firea rm enhanc ement provision was objectively unrea sonable. Howeve r, defendant makes no argument as t o s ec t i o n 8 -4(c)(1) (D), which provides for an additional term of 25 year s to life when the de fenda nt persona lly discharg ed a firea rm that

cause d g reat bodily harm during an attempt to commit first degre e m u rd er. 720 I L CS 5/8- 4(c) (1)( D) (West 2010). Rather, defe ndant’s argument solely related to section 8-4(c )(1) (E) by arguing that the 25-y ear enhanc ement is inapplicable under that section. S ince we have alre ady deter

mined that defe ndant could not have been sentenc ed under section 8-4(c )(1) (E),

we ne ed not consider

this argument. ¶ 36 Finally
, defe ndant argues that the firea rm sentenc e enhanc ement provision, sec t i on 8- 4(c) (1)( D), is unconstitutionally disproportionate as applied to him. Def endant rec eived the minimum sentenc e possible for attempted first degree murder, a Class X felony , subject to the firea rm sent en ce en h ancement, a 6-year sentenc e plus the 25-year enhanc ement. 730 I L CS 5/5-4.5-25(a ) (West 2010) (Class X felony has a sentenc ing rang e of 6 to 30 year s); 720 I L CS 5/8-4(c) (1)(D) (West 2010). Specifica lly
, defe ndant contends that the minimum
sentenc e of 31 year s that was imposed in this case is disproportionate beca use if he had killed Smit h, and it was deter

mined that he acte d under a sudden and intense passion resulting from

a serious provocation, then the maxi mum sentenc e he could have rec eived was 20 y ear s. See 730 I L CS 5 / 5 -4.5-30(a) (West 2010) (sec ond degree murder is a Class 1 felony with a sentenc ing rang e of not less than 4 year s and not more than 20 y ear s). Defenda nt contends that his sentenc e with the firea rm enhanc ement is so wholly disproportionate to the offe nse commi t t ed as t o shock the moral sense of the community beca use it failed to acc ount for mitigating circ umstances. See I ll. Const. 1970, art. I
, § 11; People v. Miller
, 202 I ll. 2d 328, 339 (2002). ¶ 37 T h e State initially responds that defe ndant lacks standing to raise this claim bec au s e defe ndant was convicted of attempted first degree murder, not second degree murder. “The
g ener al rule is that courts will not consi der the validity of a statutory provision unless the

-9-person challeng ing the provision is direc tly aff ecte d by it or the unconstitutional feature is

so perva sive as to rende r the entire statute invalid.” People v. Morgan
, 203 I ll. 2d 470, 482 (2003). “In either case , a party has standing to bring a constit u t i o n al challeng e only if the party is able to show hi m s el f t o b e within the class ag g rieve d by the alleg ed unconstitutionalit y .” Morgan
, 203 I ll. 2 d at 482. Def endant has challeng ed the constitutionalit y of section 8-4(c )(1) (D) as violating the proportionate penalties clause of the constitution. Def

endant did rec eive an additional term of 25 y ear s pursuant to section 8- 4(c) (1)( D), and there fore
, he is w ithin the ag g rieve d class to cha lleng e the statute and does not lack standing

. ¶ 38 We revie w the constitutionality of a statute as a matter of law, subject to de novo revie w. People v. Sharpe
, 216 I ll. 2d 481, 486-87 (2005). All statutes car ry a strong presumption of constitutionalit y , and to over come this presumption, the par ty challeng ing the statute must clea rly establish that the statute violates the constituti o n

. S h a r p e , 216 I ll. 2d at 487. “We
g ener all y d efer to the leg islature in the sentenc ing are na beca use the leg islature is institutionally better equipped to g aug e the seriousness of various offe nses and to fashion
sentenc es acc ording ly .” Sharpe
, 216 I ll. 2d at 487. “The leg islature’s discre t i o n in setting criminal penalties is broad, and courts g ener ally d e c li n e to o v e r r u le le g is la ti v e d eter minations i n t h i s are a unless the challeng ed penalty is clea rly in excess of the g ener al constitutio n al limit ations on this authority .” Sharpe , 216 I ll. 2d at 487. ¶ 39 The proportion at e p en al t i es cl au s e o f the I llinois Constitution decla res that “[a]ll penalties shall be deter

mined *** acc ording to the seriousness of the offe nse.” I ll. Cons t. 1970, art. I
, § 11. In Sharpe
, the I llinois Supreme Court held that a defe ndant may raise two ty pes of proportionate penalties challeng es: (1) a penalty violates the proportionate penalties clause if it is crue l, degrading
, or so wholly disproportionate to the offe nse committed as to shock the moral sense of the community ; or (2) the proportionate penalties clause is violated wher e off enses with identical elements are g iven differ ent sentenc es. Sharpe
, 216 I ll. 2d at 521. ¶ 40 In the prese nt case , defe ndant is challeng ing section 8-4(c )(1) (D) under the first ty pe of challeng e, t h at h i s sentenc e for attempted first degree murder with the 25-year firea rm enhanc ement i s so wholly disproportionate as to shock the moral sense of the community beca use the enhanc ement applies even when mitigating circ umstances are prese nt, such that the penalty fo r t he attempt exceeds the sentenc ing rang e for the actua l offe nse. Def endant

as s er t s t hat his sentenc e shocks the moral sense of the community beca use his 31-year sentenc e for attempted first degree murder is more sever e than the s entenc e of 20 y ear s he would have rec eived for second degree murder if he had killed Smit h. Howeve r, the flaw in defe ndant’s argument is that the o ffense attempted was first degree murder, not second degree murder. As we have alre ady conclude d, no m i t i gat ing circ umstances wer e prese nt beca use the evidenc e in this case does not support a finding that def en d an t ac t ed under a sudden and in

ten s e p a s s ion resulting from serious provocation. I f defe ndant had killed Smit h, defe ndant would have been char g ed with first degree m u rd er. Acc ording ly
, defe ndant’s
argument fails. ¶ 41 Fur

ther, the supr eme c ourt has alr eady conclude d that firea

rm enha nceme nt provisions for attempted first degree murder do not shock the moral sense of the community

. Morgan
,

-10-203 I ll. 2d at 488. The Morgan court found:
“We further acknow ledg e that the leg islative purpose for enac ting Public Act 91-404 [t he
act codifying section 8-4(c )(1) (D)] is the deter renc e of the use of firea rms in the commission of offe nses. The prese nce of firea rms during the commission of an offe nse alway s poses an extreme dan ger , not only to intended victims, but also to innocent by standers. Thus, we will not secon d -gu es s the leg islature’s deter mination that the protec tion of society nece ssitates the imposit ion of sever e penalties whene ver a firea rm is used in the course of an offe nse. [C itation.] Thus, we cannot say that, wher e mitigating circ umstances are not prese nt, it would be crue l, degrading or so wholly disproportionate to the offe nse committed to subject a de fenda nt who commits the offe nse of attempted first degree murder to mandatory add-on se ntence s of 15 y ear s, 20 y ear s or 25 y ear s to life, depending on whether a firea rm is prese nt, discharg ed or the cause of bodily injury

. Nor would the imposit ion o f t h es e penalties run counter to the g ener al sentenc ing direc tive that ‘the pen al t y fo r committing an attempt may not exceed the maxi mum penalty for the offe nse attempted.’ The penalty for first degr ee murder is a term of imprisonment betwee n 20 and 60 y ear s (730 I L CS 5/5-8-1(a)(1) (a) (West 2000)), which
must be enhanc ed by the addition of 15 y ear s, 20 y ear s, or 25 y ear s to life, depending on whether the defe ndant, in committi n g t he offe nse, was in the possession of a firea rm, discharg ed a firea

rm, or cause d bodily injury or death as a result of the use of a firea rm (730 I L CS 5/5-8-1(a)(1) (d) (West 2000)). We conclude
, then, that the mandatory enhanc ed sentenc ing scheme added to the offe nse of attempted first degree murder does
not make the penalty for committin g an at t empt exceed the maxi mum penalty for the offe nse attempted and, there fore
, the penalt y is n o t in h e rently unconstitutional.” Morgan
, 203 I ll. 2d at 488-89. ¶ 42 T h e s up re me court in Sharpe overr uled part of the decision in Morg a n wh i ch h ad

con s i d er ed the firea

rm enhanc ement provisions under the cross-c omparison analy sis for proportionate penalties. Sharpe
, 216 I ll. 2d at 519. Whil e the Sharpe court abolis h ed the

cross-c omparison analy sis used in Morgan
, later in the opinion, the court rec og nized that it had “alr eady held in Morgan that it is neither crue l nor degrading
, nor would it shock t h e moral sense of the community
, to apply the 15/20/25-to-life enhanc ements to attempted first degree murder.” (Emphasis omitted.) Sharpe
, 216 I ll. 2d at 5 2 4

. T h e Sharpe court, in considering the firea

rm enhanc ements for first degree murder, then conclude d that “it would
not shock the conscie nce of the community to lear n that the leg islature has deter mined that

an additional penalty oug ht to be imposed when murder is committed with a wea pon that not only enhanc es the perpe trator’ s ability to kill the intended victim, but also incre ases the risk that g rievous harm or death will be inf l i ct ed upon by standers.” Sharpe
, 216 I ll. 2d at 525. Since the supreme co u rt has alre ady reje cted the proportionate penalties challeng e to the firea rm enhanc ement provisions for attempted first degree m u rd er raised by defe ndant, defe ndant’s constitutional challeng e must fail. ¶ 43 Ba sed on the for eg oing r easons, we aff irm defe ndant’s convic tion and sentenc e.

¶ 44 Affir

med.

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