ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

VERNON LAUDERDALE, Defendant-Appellant.

 District & No. First District, Fifth Division

Docket No. 1-10-0939

Filed

Rehearing denied

March 23, 2012

May 2, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s conviction for attempted first degreemurder and his sentence

to 31 years’ imprisonment, including a 25-year enhancement for

personally discharging a firearm that caused great bodily harm to another

person, were upheld over his contentions that his counsel was ineffective

in failing to ask that defendant be sentenced under section 8-4(c)(1)(E) of

the Unified Code of Corrections allowing him to be sentenced for a Class

1 felony, rather than a Class X felony, if he proved he acted under a

sudden and intense passion resulting from serious provocation and that

the firearm enhancement provision of the attempted murder statute

violated the proportionate penalties clause, since defendant’s retaliation

from the victim’s single punch to defendant’s jaw was out of proportion

to the victim’s conduct, especially when defendant shot the victim three

times at close range, and the challenge to the firearm enhancement

provision for attempted first degree murder has already been rejected by

the Illinois Supreme Court.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-CR-14331; the

Hon. Joseph M. Claps, Judge, presiding.
Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and La Roi Williams, all of State

Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles

J. Keleher, and Kalia M. Coleman, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion.

Presiding Justice Epstein and Justice Howse concurred in the judgment

and opinion.

OPINION

¶ 1 Following a bench trial, defendant Vernon Lauderdale was found guiltyof attempted first

degree murder. At sentencing, the trial court imposed a term of 31 years’ imprisonment,

which included an additional term of 25 years for personally discharging a firearm that

proximately caused great bodily harm to another person. Defendant appeals, arguing that he

received ineffective assistance of trial counsel because his attorney failed to request the trial

court to sentence defendant under section 8-4(c)(1)(E) of the Criminal Code of 1961

(Criminal Code)(720 ILCS 5/8-4(c)(1)(E) (West 2010)). Section 8-4(c)(1)(E) allows the trial

court to sentence a defendant for a Class 1 felony, as opposed to a Class X felony, if at

sentencing the defendant proves by a preponderance of the evidence that at the time of

attempted murder, the defendant was acting under a sudden and intense passion resulting

from serious provocation. Defendant also contends that the firearm enhancement provision

of the attempted murder statute violates the proportionate penalties clause of the Illinois

Constitution.

¶ 2 Defendant was charged by indictment with two counts of attempted first degree murder,

one count of aggravated battery with a firearm, and two counts of unlawful use of a weapon.

Prior to trial, the State elected to nol-pros the two counts of unlawful use of a weapon.

¶ 3 Defendant’s bench trial began in July 2009, and the following evidence was adduced.

¶ 4 Prentis Smith testified that he was a former member of the MickeyCobra street gang. He

joined in 1978 when he was eight years old and left the gang in 1996. While in the gang, he

achieved the rank of a “prince.” He identified defendant in court as someone he had known

for 20 years. Smith was best friends with defendant’s brother. Smith admitted that he was

convicted of home invasion in 1998.

¶ 5 On the afternoon of July 20, 2008, Smith testified that he was “on Sedgwick in the

Cabrini area.” He was in a parking lot with his 16-year-old cousin Deondre Daley and Ryan

-2-
Myles. Daley is also defendant’s nephew. During the afternoon, at around 2 or 3 p.m., Smith

“had words” with a man called “Shooter.” Smith tried to punch Shooter, but missed and

Shooter ran. Smith stated that the dispute was over selling drugs in the parking lot. As

Shooter left the parking lot, Smith observed Shooter make a phone call, but did not know

whom Shooter called. 

¶ 6 Later, at approximately 10 p.m. that night, Smith testified that he was in the parking lot

with Daley and Myles. Smith and Daley had remained in the parking lot continuously, but

Myles had left and returned. He stated that there were “quite a few people in the parking lot.”

Smith said it was dark outside, but there were lights on two buildings around the parking lot.

Smith observed a confrontation between defendant and Daley. Defendant said that it was his

parking lot. Smith asked if they moved to Dominick’s, was that defendant’s too, and

defendant responded that it was. Smith stated that defendant pushed Daley to the ground.

Smith then punched defendant in the jaw. Smith denied having any weapons on him. 

¶ 7 After Smith punched him, defendant reached to his left side and pulled out a dark-colored

.32-caliber revolver. Smith testified that he was standing approximately two feet from

defendant, that theywere “close enough to touch.” Smith stated that defendant aimed the gun

at Smith’s chest and pulled the trigger two times, but the gun did not fire. Smith testified that

he said to defendant, “somebody [gave] you a gun with no bullets.” Defendant then stepped

back and aimed for Smith’s left leg and shot him in the left leg. Defendant then shot Smith

in the right leg. Defendant aimed the gun at Smith’s chest and Smith turned to the side as

defendant shot Smith in the shoulder. Smith stated that he “turned to the side to avoid getting

shot in [his] heart.” Smith estimated that defendant was three feet away from him when the

shooting occurred. Smith stated that all three shots were fired in less than five seconds. Smith

testified that he stood there in shock. He said defendant “took off running” and “was

hollering, ‘Cobra crazy.’ ” 

¶ 8 Smith testified that he started to run toward Evergreen, but he blacked out and fell to the

ground. He stated that Daley, Myles and Shawn Childs put him in the backseat of Smith’s

car and took him to the Lincoln Park Hospital. He was later transferred to Illinois Masonic

Hospital and treated for three gunshot wounds. He stated that he still has two bullets lodged

in his body.

¶ 9 The next day, July 21, 2008, Smith spoke with the police at the hospital and he told them

that defendant shot him. Smith was later shown a photo array and he identified defendant in

the array. Later, in April 2009, Smith testified that he visited defendant in the Cook County

jail with defendant’s mother and cousin. Smith stated that defendant apologized and said he

did not mean to shoot Smith in the chest and was not trying to kill Smith. According to

Smith, defendant said defendant would “take care of me [Smith] if I drop [sic] the charges.”

Smith interpreted this to mean money. Smith had no further contact with defendant.

¶ 10 Detective Marc Leavitt testified that on July 20, 2008, he was assigned to investigate a

shooting. He met with Smith at the hospital and Smith told him that defendant was the

person who shot him. On July 21, 2008, the detective met with defendant in custody. He

advised defendant of his Miranda rights and defendant agreed to speak with him and his

partner. Detective Leavitt asked defendant if he belonged to a gang and defendant responded

-3-
that he used to be a Mickey Cobra.

¶ 11 Chandra Bell testified that on July 20, 2008, at around 9 p.m., she was in the area of 1300

North Sedgwick in Chicago. She was in the area to visit her mother and to look for her two

sons. She found her sons in the parking lot on Sedgwick. Aftershe spoke with her sons, Bell

talked to Smith for about five minutes. Bell stated that she had known Smith all of her life

and had known defendant for 15 years. Bell observed defendant walk up to Smith, but she

was unable to hear what they were saying and was not paying attention to them. Bell was

walking toward her mother’s house when she heard shots fired. She said she ran and saw

defendant running 25 to 30 feet away from her with something in his hand, but she was

unable to see what it was. Bell also saw Smith being put into a car. 

¶ 12 Following Bell’s testimony, the State rested. Ryan Myles testified for the defense. Myles

admitted that at the time of his testimony, he was in custody for “a drug charge,” serving a

sentence of four years in the Illinois Department of Corrections. Myles stated that he had

known Smith for about two years and Smith is his godmother’s cousin. He said he knew

defendant the same way. Myles has known Daley his whole life. 

¶ 13 On July 20, 2008, Myles testified that he was at 1365 North Hudson, which he estimated

is about a block and a half from 1310 North Sedgwick. Myles denied being in the parking

lot with Smith that afternoon. He denied seeing an altercation between defendant and Smith.

While at the Hudson address, Myles heard gunshots at around 10 p.m. Myles then began

running in the direction of the shots. He stated that he went toward the gun shots because he

wanted to check on Daley. Myles ran toward Evergreen and Sedgwick. He then saw Smith

on the ground. He did not see anyone with Smith. Myles went to get Smith’s car and then he

saw Daley and Shawn Childs “coming out.” They helped Myles put Smith in the car.

¶ 14 The defense then called Kizzy McRay to testify about her knowledge of defendant and

Smith as well as her knowledge of the Mickey Cobra gang. The State objected to this line

of questioning as McRay was not a member of the gang. The trial court allowed the State to

voir dire McRay on her qualifications as an expert in Chicago gangs. McRay was allowed

to testify. 

¶ 15 McRay testified that she is defendant’s older sister. She has also known Smith for over

20 years and he is a close friend. Smith was best friends with her deceased older brother,

Leon Daley. McRay stated that Leon was a member of the Mickey Cobra gang and he held

the rank of “supreme.” McRay learned about the gang signs displayed by the MickeyCobras

by being around her brother and his friends. She did not know of “any of [defendant’s]

involvement in being a Mickey Cobra.” 

¶ 16 McRay identified various gang signs displayed by Smith in three pictures presented by

the defense. McRay testified that Smith was still a member of the Mickey Cobras. McRay

then stated that Smith came to her house in June and July 2008 seeking to recruit her son into

the gang. McRay admitted that she was not present at the time of the shooting and that she

told the investigator from the public defender’s office that she did not believe defendant

committed the shooting. Following McRay’s testimony, the defense rested.

¶ 17 In December 2009, after closing arguments, the trial court found defendant guilty of

attempted first degree murder. The court also determined that defendant personally

-4-
discharged a firearm that proximately caused great bodily harm to Smith. In January 2010,

defendant filed a “motion to reconsider or in the alternative for a new trial,” which the trial

court denied.

¶ 18 At the February 2010 sentencing hearing, the trial court heard evidence in aggravation,

including a victim impact statement from Smith and defendant’s prior convictions, one

misdemeanor and four felonies. In mitigation, the defense presented the testimony of

defendant’s mother and noted that defendant worked consistently and had committed no

other offenses since 2002. After considering this evidence, the trial court imposed a sentence

of 31 years’ imprisonment, which included a 25-year enhancement for personallydischarging

a firearm that proximately caused great bodily harm to Smith. While imposing the sentence,

the trial court stated:

“I’ve considered the factors in aggravation and mitigation. I’ve considered the

arguments of counsel. I’ve considered the testimony of Mrs. Lauderdale. And I’ve

considered greatly Mr. Vernon Lauderdale’s remarks.

Mr. Lauderdale, I truly wish there was a crime called attempt second degree murder.

I wish there was. I wish the legislature in this and other cases would have the confidence

in the judicial system, in the judiciary, to give freedom to judges to make sentences

specific for the crimes committed in consideration with the backgrounds of defendants

and the facts of the cases, and the factors in mitigation and aggravation, To me, that

would be true fairness.

The legislature has saw fit [sic], and I’m not saying or suggesting the legislature is

not justified, given the violence that happens each and everyday, to enhance sentences,

but there are ways to enhance sentences that would give judges more freedom to carve

out sentences that are more representative of the crime and the background of the

offender.

From a personal standpoint, I don’t believe that what they’ve done, this particular

statute does that, but I am bound by the law. There is nothing I can do. Without the

enhancement your sentence would not be the sentence that I am mandated to give you.

I’ll also state for the record that given your background and the actions, 6 years would

not be the minimum–it’s the minimum sentence. That’s not what I would sentence you

to. But I also wouldn’t sentence you to what the minimum is required by law, which is

31 years. But I am obligated to do that. I have no choice but to give you, at a minimum,

that sentence.”

¶ 19 Defendant filed a motion to reconsider his sentence, which the trial court denied. This

appeal followed.

¶ 20 On appeal, defendant argues that his trial counsel was ineffective for failing to argue that

defendant was eligible for sentencing under section 8-4(c)(1)(E) of the Criminal Code of

1961 (720 ILCS 5/8-4(c)(1)(E) (West 2010)). Specifically, defendant asserts that, pursuant

to section 8-4(c)(1)(E), his trial attorney could have shown by a preponderance of the

evidence that defendant was acting under a sudden and intense passion resulting from serious

provocation at the time he shot Smith, and the trial court would have sentenced him for a

nonenhanced Class 1 felony. The State maintains that defendant’s claim of ineffective

-5-
assistance of trial counsel lacks merit because defendant would be ineligible for sentencing

under section 8-4(c)(1)(E) since the evidence would not support a finding that defendant was

acting under a sudden and intense passion resulting from serious provocation. 

¶ 21 Claims of ineffective assistance of counsel are resolved under the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court delineated

a two-part test to use when evaluating whether a defendant was denied the effective

assistance of counsel in violation of the sixth amendment. Under Strickland, a defendant

must demonstrate that counsel’s performance was deficient and that such deficient

performance substantiallyprejudiced defendant. Strickland, 466 U.S. at 687. To demonstrate

performance deficiency, a defendant must establish that counsel’s performance fell below

an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). In

evaluating sufficient prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. If a case may be disposed of on the

ground of lack of sufficient prejudice, that course should be taken, and the court need not

ever consider the quality of the attorney’s performance. Strickland, 466 U.S. at 697. 

¶ 22 Section 8-4(c)(1)(E), which became effective January 1, 2010, provides:

“[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the

time of the attempted murder, he or she was acting under a sudden and intense passion

resulting from serious provocation by the individual whom the defendant endeavored to

kill, or another, and, had the individual the defendant endeavored to kill died, the

defendant would have negligently or accidentally caused that death, then the sentence for

the attempted murder is the sentence for a Class 1 felony[.]” 720 ILCS 5/8-4(c)(1)(E)

(West 2010).

¶ 23 This language is substantially similar to the statutory language for one of the grounds for

second degree murder. See 720 ILCS 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 killed or another whom the offender endeavors to kill, but he or she negligently

or accidentally causes the death of the individual killed”). Since no cases have considered

“sudden and intense passion resulting from serious provocation” under section 8-4(c)(1)(E),

we turn to cases that have considered serious provocation in reducing first degree murder to

second degree murder. 

¶ 24 The Criminal Code does not outline what circumstances or categories of serious

provocation would reduce first degree to second degree murder. People v. Sutton, 353 Ill.

App. 3d 487, 491 (2004). However, the Illinois Supreme Court has recognized that “for

purposes of reducing first degree murder based on serious provocation, the ‘ “only categories

of serious provocation which have been recognized are: ‘substantial physical injury or

assault, mutual quarrel or combat, illegal arrest, and adulterywith the offender’s spouse; but

not mere words or gestures or trespass to property.’ [Citation.]” ’ ” Sutton, 353 Ill. App. 3d

at 491 (quoting People v. Chevalier, 131 Ill. 2d 66, 71 (1989), quoting People v. Crews, 38

Ill. 2d 331, 335 (1967)). 

-6-
¶ 25 Here, there was no evidence at trial that defendant suffered a “substantial physical injury

or assault” as a result of one punch to the jaw by Smith nor has defendant raised this basis

on appeal. Instead, the parties focus on the mutual combat category of serious provocation.

¶ 26 “Mutual combat is a fight or struggle which both parties enter willingly or where two

persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where

death results from the combat.” People v. Austin, 133 Ill. 2d 118, 125 (1989). “In considering

whether defendants have met the threshold burden of proving some evidence of mutual

combat, it has been held that the alleged provocation on the part of the victim must cause the

same passionate state of mind in an ordinary person under the same circumstances. A slight

provocation is not enough, because the provocation must be proportionate to the manner in

which the accused retaliated. The crime is murder when a defendant attacks a victim with

violence out of all proportion to the provocation.” Austin, 133 Ill. 2d at 126-27. “There is no

mutual combat where the manner in which the accused retaliates is out of all proportion to

the provocation, particularly where homicide is committed with a deadly weapon.” Sutton,

353 Ill. App. 3d at 496. 

¶ 27 Defendant argues that the evidence supports his assertion that his attorney could have

shown by a preponderance of the evidence that defendant was acting under a sudden and

intense passion resulting from serious provocation when he shot Smith. Defendant notes

Smith’s rank in the Mickey Cobras and the altercation with “Shooter” earlier in the day as

support for defendant’s actions. However, there was no evidence that defendant had any

knowledge of Smith’s interaction with “Shooter.” Defendant also argues that physically,

Smith was much larger than defendant. Defendant bases this argument on Smith’s testimony

describing defendant as approximately 5 feet 7 inches and weighing approximately 135 to

140 pounds while Smith described himself as 6 feet 1 inch and 230 pounds. However,

defendant’s arrest report, which is included in the record, states that defendant was 5 feet 9

inches and weighed 265 pounds. Defendant has not argued mutual combat, but instead his

argument is more in line with second degree murder that is not included in section 8-

4(c)(1)(E), an unreasonable belief that the defendant believes the circumstances to be such

that, if they existed, would justify or exonerate the killing. See 720 ILCS 5/9-2(a)(2) (West

2010). Section 8-4(c)(1)(E) does not provide for a mitigated sentence based on unreasonable

belief. See 720 ILCS 5/8-4(c)(1)(E) (West 2010).

¶ 28 The record refutes defendant’s claim of serious provocation. The evidence presented at

trial showed that defendant approached Smith and Daley. Defendant pushed Daley to the

ground and then Smith punched defendant in the jaw. In retaliation, defendant pulled out a

gun and fired it at Smith five times. The gun did not fire the first two times defendant pulled

the trigger. Smith asked defendant if someone gave him a gun with no bullets. Defendant

then aimed the gun at Smith’s left leg and this time the gun fired. Defendant next shot Smith

in the right leg. Defendant raised the gun and aimed at Smith’s chest. Smith turned to avoid

being struck in the heart and was shot in the left shoulder. Defendant then fled the scene.

¶ 29 There was no mutual combat as the fight was not on equal terms. The evidence showed

that only defendant was armed with a deadly weapon. Smith punched defendant one time.

Defendant’s response of pulling out a gun and firing it multiple times, striking Smith three

times, was “out of all proportion” to Smith’s provocation. 

-7-
¶ 30 In Austin, the defendant boarded a Chicago Transit Authority bus and got into a dispute

with the bus driver over the fare. The evidence at trial was unclear if the dispute was because

defendant tried to use a discounted student pass on a holiday or if the defendant sought to

take a bus transfer without sufficient payment. Regardless, the defendant got into a physical

fight with the bus driver. The two women exchanged blows for about 30 to 40 seconds. The

defendant pulled a gun from her waistband and fired it into the floor of the bus. The bus

driver was able to force the defendant off the bus, but while both were off the bus, the

defendant shot and killed the bus driver. The defendant fled, but later returned to retrieve her

bag from the bus and fled again. The defendant testified that she did not intend to shoot the

bus driver. Austin, 133 Ill. 2d at 122-23. 

¶ 31 The supreme court declined to find evidence of mutual combat because the bus driver did

not enter the fight willingly and the fight was not on equal terms. Austin, 133 Ill. 2d at 125. 

“The record in this case indicates that defendant shot and killed an unarmed victim

who provoked defendant by speaking gruffly to her and striking her on the hand with a

transfer punch. At the most, the victim provoked defendant by engaging in a ‘fairly even’

fistfight for 30 to 40 seconds and forcing her off the bus. Defendant testified that she was

afraid and wanted to cease the altercation with the bus driver. There is nothing in the

record, however, to objectively indicate that defendant had reason to fear for her life.

Shooting the driver was an act completely out of proportion to the provocation.

Therefore, mutual combat cannot apply.” Austin, 133 Ill. 2d at 127.

¶ 32 In Sutton, the defendant contended on appeal that his trial counsel was ineffective for

failing to request an instruction on second degree murder based on mutual combat. In that

case, the defendant and the victim had been in a romantic relationship. The defendant went

to see the victim at her mother’s house and they began to argue. During the argument, the

victim told the defendant that he was not the father of her son. The victim picked up a roller

skate and the defendant picked up a knife. In a statement, the defendant 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 defendant then stabbed the victim in the side. They continued to struggle as they

moved to the bedroom, where the defendant continued to stab the victim. Sutton, 353 Ill.

App. 3d at 489.

¶ 33 The reviewing court found that the record did not support the defendant’s argument that

his attorney should have requested a mutual combat instruction. The contact between the

defendant and the victim was not on equal terms and the defendant’s response was out of all

proportion. Sutton, 353 Ill. App. 3d at 496.

“Defendant responded to allegedly being hit by the victim with a roller skate by stabbing

the victim 23 times, and 9 of those stab wounds were to her back. The record reflects that

the manner in which the defendant retaliated was completely out of all proportion to the

words and contact made by the victim. Defendant admitted on cross-examination that he

knew the victim would not kill him or put him in the hospital by striking him with the

roller skate. If defendant and victim had mutually engaged in combat, defendant

retaliated out of all proportion to the victim’s conduct, negating a mutual combat

instruction.” Sutton, 353 Ill. App. 3d at 496.

-8-
¶ 34 In the instant case, the manner in which defendant retaliated from a single punch to the

jaw was completely out of all proportion to Smith’s conduct and belies defendant’s argument

that he acted out of serious and intense passion from serious provocation. There was no

mutual combat between defendant and Smith when Smith struck defendant once and

defendant responded by pulling out a firearm and shooting Smith multiple times. The

evidence does not support a finding that defendant acted under a sudden and intense passion

resulting from serious provocation. Thus, section 8-4(c)(1)(E) was not applicable to

defendant’s conduct. Since defendant could not have been sentenced under section 8-

4(c)(1)(E), defendant cannot show how he was prejudiced by his attorney’s decision not to

argue for its application. While the trial court’s comments at sentencing indicate a desire for

more discretion in the sentence to be imposed on defendant, the evidence at trial does not

support a finding that defendant acted “under a sudden and intense passion resulting from

serious provocation.” Defendant cannot show that a reasonable probability exists that the

result of the proceeding would have been different had counsel referenced section 8-

4(c)(1)(E) because this section does not apply under the facts of this case. Accordingly, we

conclude that defendant’s trial counsel was not ineffective.

¶ 35 Defendant further contends that his trial counsel’s “concession” that defendant was

subject to the 25-year firearm enhancement provision was objectively unreasonable.

However, defendant makes no argument as to section 8-4(c)(1)(D), which provides for an

additional term of 25 years to life when the defendant personally discharged a firearm that

caused great bodily harm during an attempt to commit first degree murder. 720 ILCS 5/8-

4(c)(1)(D) (West 2010). Rather, defendant’s argument solely related to section 8-4(c)(1)(E)

by arguing that the 25-year enhancement is inapplicable under that section. Since we have

already determined that defendant could not have been sentenced under section 8-4(c)(1)(E),

we need not consider this argument.

¶ 36 Finally, defendant argues that the firearm sentence enhancement provision, section 8-

4(c)(1)(D), is unconstitutionally disproportionate as applied to him. Defendant received the

minimum sentence possible for attempted first degree murder, a Class X felony, subject to

the firearm sentence enhancement, a 6-year sentence plus the 25-year enhancement. 730

ILCS 5/5-4.5-25(a) (West 2010) (Class X felony has a sentencing range of 6 to 30 years); 720

ILCS 5/8-4(c)(1)(D) (West 2010). Specifically, defendant contends that the minimum

sentence of 31 years that was imposed in this case is disproportionate because if he had killed

Smith, and it was determined that he acted under a sudden and intense passion resulting from

a serious provocation, then the maximum sentence he could have received was 20 years. See

730 ILCS 5/5-4.5-30(a) (West 2010) (second degree murder is a Class 1 felony with a

sentencing range of not less than 4 years and not more than 20 years). Defendant contends

that his sentence with the firearm enhancement is so wholly disproportionate to the offense

committed as to shock the moral sense of the community because it failed to account for

mitigating circumstances. See Ill. Const. 1970, art. I, § 11; People v. Miller, 202 Ill. 2d 328,

339 (2002).

¶ 37 The State initially responds that defendant lacks standing to raise this claim because

defendant was convicted of attempted first degree murder, not second degree murder. “The

general rule is that courts will not consider the validity of a statutory provision unless the

-9-
person challenging the provision is directly affected by it or the unconstitutional feature is

so pervasive as to render the entire statute invalid.” People v. Morgan, 203 Ill. 2d 470, 482

(2003). “In either case, a party has standing to bring a constitutional challenge only if the

party is able to show himself to be within the class aggrieved by the alleged

unconstitutionality.” Morgan, 203 Ill. 2d at 482. Defendant has challenged the

constitutionality of section 8-4(c)(1)(D) as violating the proportionate penalties clause of the

constitution. Defendant did receive an additional term of 25 years pursuant to section 8-

4(c)(1)(D), and therefore, he is within the aggrieved class to challenge the statute and does

not lack standing. 

¶ 38 We review the constitutionality of a statute as a matter of law, subject to de novo review.

People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005). All statutes carry a strong presumption of

constitutionality, and to overcome this presumption, the party challenging the statute must

clearly establish that the statute violates the constitution. Sharpe, 216 Ill. 2d at 487. “We

generally defer to the legislature in the sentencing arena because the legislature is

institutionally better equipped to gauge the seriousness of various offenses and to fashion

sentences accordingly.” Sharpe, 216 Ill. 2d at 487. “The legislature’s discretion in setting

criminal penalties is broad, and courts generallydecline to overrule legislative determinations

in this area unless the challenged penalty is clearly in excess of the general constitutional

limitations on this authority.” Sharpe, 216 Ill. 2d at 487. 

¶ 39 The proportionate penalties clause of the Illinois Constitution declares that “[a]ll

penalties shall be determined *** according to the seriousness of the offense.” Ill. Const.

1970, art. I, § 11. In Sharpe, the Illinois Supreme Court held that a defendant may raise two

types of proportionate penalties challenges: (1) a penalty violates the proportionate penalties

clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to

shock the moral sense of the community; or (2) the proportionate penalties clause is violated

where offenses with identical elements are given different sentences. Sharpe, 216 Ill. 2d at

521.

¶ 40 In the present case, defendant is challenging section 8-4(c)(1)(D) under the first type of

challenge, that his sentence for attempted first degree murder with the 25-year firearm

enhancement is so wholly disproportionate as to shock the moral sense of the community

because the enhancement applies even when mitigating circumstances are present, such that

the penalty for the attempt exceeds the sentencing range for the actual offense. Defendant

asserts that his sentence shocks the moral sense of the community because his 31-year

sentence for attempted first degree murder is more severe than the sentence of 20 years he

would have received for second degree murder if he had killed Smith. However, the flaw in

defendant’s argument is that the offense attempted was first degree murder, not second

degree murder. As we have already concluded, no mitigating circumstances were present

because the evidence in this case does not support a finding that defendant acted under a

sudden and intense passion resulting from serious provocation. If defendant had killed Smith,

defendant would have been charged with first degree murder. Accordingly, defendant’s

argument fails. 

¶ 41 Further, the supreme court has already concluded that firearm enhancement provisions

for attempted first degree murder do not shock the moral sense of the community. Morgan,

-10-
203 Ill. 2d at 488. The Morgan court found:

“We further acknowledge that the legislative purpose for enacting Public Act 91-404 [the

act codifying section 8-4(c)(1)(D)] is the deterrence of the use of firearms in the

commission of offenses. The presence of firearms during the commission of an offense

always poses an extreme danger, not only to intended victims, but also to innocent

bystanders. Thus, we will not second-guess the legislature’s determination that the

protection of society necessitates the imposition of severe penalties whenever a firearm

is used in the course of an offense. [Citation.] Thus, we cannot say that, where mitigating

circumstances are not present, it would be cruel, degrading or so wholly disproportionate

to the offense committed to subject a defendant who commits the offense of attempted

first degree murder to mandatory add-on sentences of 15 years, 20 years or 25 years to

life, depending on whether a firearm is present, discharged or the cause of bodily injury.

Nor would the imposition of these penalties run counter to the general sentencing

directive that ‘the penalty for committing an attempt may not exceed the maximum

penalty for the offense attempted.’ The penalty for first degree murder is a term of

imprisonment between 20 and 60 years (730 ILCS 5/5-8-1(a)(1)(a) (West 2000)), which

must be enhanced by the addition of 15 years, 20 years, or 25 years to life, depending on

whether the defendant, in committing the offense, was in the possession of a firearm,

discharged a firearm, or caused bodily injury or death as a result of the use of a firearm

(730 ILCS 5/5-8-1(a)(1)(d) (West 2000)). We conclude, then, that the mandatory

enhanced sentencing scheme added to the offense of attempted first degree murder does

not make the penalty for committing an attempt exceed the maximum penalty for the

offense attempted and, therefore, the penaltyisnot inherentlyunconstitutional.” Morgan,

203 Ill. 2d at 488-89.

¶ 42 The supreme court in Sharpe overruled part of the decision in Morgan which had

considered the firearm enhancement provisions under the cross-comparison analysis for

proportionate penalties. Sharpe, 216 Ill. 2d at 519. While the Sharpe court abolished the

cross-comparison analysis used in Morgan, later in the opinion, the court recognized that it

had “already held in Morgan that it is neither cruel nor degrading, nor would it shock the

moral sense of the community, to apply the 15/20/25-to-life enhancements to attempted first

degree murder.” (Emphasis omitted.) Sharpe, 216 Ill. 2d at 524. The Sharpe court, in

considering the firearm enhancements for first degree murder, then concluded that “it would

not shock the conscience of the community to learn that the legislature has determined that

an additional penalty ought to be imposed when murder is committed with a weapon that not

only enhances the perpetrator’s ability to kill the intended victim, but also increases the risk

that grievous harm or death will be inflicted upon bystanders.” Sharpe, 216 Ill. 2d at 525.

Since the supreme court has already rejected the proportionate penalties challenge to the

firearm enhancement provisions for attempted first degree murder raised by defendant,

defendant’s constitutional challenge must fail. 

¶ 43 Based on the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 44 Affirmed.

-11-