Docket No. 102468.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

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

JOSEPH HAUSCHILD, Appellant.

Opinion filed June 7, 2007.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,

Garman, and Burke concurred in the judgment and opinion.

OPINION

Following a jury trial in the Kane County circuit court, defendant,

Joseph Hauschild, was convicted of, inter alia, home invasion, armed

robbery and attempted first degree murder. Defendant appealed and

the appellate court originally reversed his convictions for armed

robbery and home invasion, substituted a conviction for simple

robbery and remanded for resentencing. Following a grant of the

State’s petition for rehearing, the appellate court affirmed defendant’s

convictions and remanded for resentencing on the armed robbery and

attempted murder convictions. 364 Ill. App. 3d 202. This court

allowed defendant’s petition for leave to appeal. 210 Ill. 2d R. 315.

For the reasons that follow, we affirm in part and reverse in part the

judgment of the appellate court.
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BACKGROUND

On August 14, 2001, defendant and codefendant, Ethan Warden,

broke into a residence occupied by Thomas Wright and his family.

Defendant and Warden were each armed with a handgun. The two

men entered the master bedroom, awakened Wright and his wife, and

demanded a safe. Wright struggled with one of the defendants, and

both defendants fired their weapons. Two shots hit Wright, causing

life-threatening wounds to his chest and abdomen, as well as serious

wounds to his right arm and left leg. The defendant and Warden then

fled the scene carrying a lockbox.

On September 14, 2001, defendant was indicted for attempted first

degree murder (720 ILCS 5/8–4(a), 9–1(a)(1) (West 2000)); armed

robbery (720 ILCS 5/18–2(a)(4) (West 2000)); home invasion (720

ILCS 5/12–11(a)(3) (West 2000)); home invasion (720 ILCS

5/12–11(a)(5) (West 2000)); aggravated battery with a firearm (720

ILCS 5/12–4.2(a)(1) (West 2000)); and criminal damage to property

(720 ILCS 5/21–1(1)(d) (West 2000)). Following a jury trial, in which

an accountability instruction was given, defendant was found guilty of

attempted murder, armed robbery and home invasion. The verdict

form for home invasion required the jury to make a specific factual

finding regarding a single offense of home invasion, and the jury

indicated that defendant was guilty in that he “personally discharged

a firearm during the offense.” See 720 ILCS 5/12–11(a)(4) (West

2000). On May 28, 2003, the trial court merged the aggravated

battery with a firearm conviction into the attempted murder conviction

and sentenced defendant to 35 years’ imprisonment for home invasion,

18 years’ imprisonment for attempted murder, and 12 years’

imprisonment for armed robbery, each to be served consecutively, as

well as a 2-year concurrent term of imprisonment for criminal damage

to property, for a cumulative sentence of 65 years’ imprisonment.

While the sentence for home invasion included a 20-year enhancement

based on the jury’s finding that defendant discharged a firearm during

the commission of the offense (720 ILCS 5/12–11(a)(4), (c) (West

2000)), the trial court refused to enhance defendant’s sentences for

armed robbery while armed with a firearm and attempted murder,

finding that the penalties for those offenses violated the proportionate

penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I,

§11) under the holdings of this court in People v. Walden, 199 Ill. 2d
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392 (2002), and People v. Morgan, 203 Ill. 2d 470 (2003),

respectively.

In an opinion filed on October 5, 2005, the appellate court

affirmed defendant’s convictions for criminal damage to property and

attempted murder, but based on a cross-comparison analysis,

determined that the penalties imposed for the home invasion and

armed robbery offenses violated the proportionate penalties clause of

the Illinois Constitution (Ill. Const. 1970, art. I, §11), and that the

penalties were not severable from the substantive offenses. Thus, the

court reversed defendant’s convictions of those two offenses and

vacated the sentences imposed thereon. However, at defendant’s

request, the court supplanted his conviction of armed robbery with a

conviction of simple robbery and remanded the cause for resentencing.

One day later, October 6, 2005, this court filed its decision in People

v. Sharpe, 216 Ill. 2d 481 (2005), abandoning cross-comparison

analysis in proportionate penalties clause cases. The State therefore

filed a petition for rehearing in this case, based on Sharpe. The

appellate court granted the petition, withdrew its October 5, 2005,

opinion, and filed a new opinion in which it affirmed defendant’s

convictions for home invasion, attempted murder, armed robbery, and

criminal damage to property, but vacated his sentences for armed

robbery and attempted murder and remanded for resentencing on

those convictions. 364 Ill. App. 3d 202.

In its opinion after rehearing, the appellate court agreed with both

the State and defendant that he was actually charged with, and

convicted of, armed robbery pursuant to subsection (a)(2) of the

armed robbery statute (720 ILCS 5/18–2(a)(2) (West 2000)), as

opposed to subsection (a)(4) (720 ILCS 5/18–2(a)(4) (West 2000)),

as stated in the indictment. 364 Ill. App. 3d at 211. The panel also

held that: (1) the penalty for armed robbery was not unconstitutionally

disproportionate to the penalty for armed violence based on the

identical-elements test (364 Ill. App. 3d at 213-17); and (2) in light of

Sharpe, defendant’s sentences for armed robbery and attempted

murder, which the trial court had refused to enhance as violative of

the proportionate penalties clause, should be vacated and remanded

to the trial court for resentencing in accordance with the statutorily

mandated enhancements (364 Ill. App. 3d at 223-25). Additionally,

the appellate court affirmed defendant’s 35-year sentence for home
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invasion, finding it was not excessive. 364 Ill. App. 3d at 220-22.

Finally, the panel rejected defendant’s claim, made for the first time in

his answer to the State’s petition for rehearing, that consecutive

sentences were not required for each of his home invasion, attempted

murder and armed robbery convictions, and instructed the trial court,

on remand, to order the sentences for each of the three offenses to run

consecutively. 364 Ill. App. 3d at 225, 227-29.

ANALYSIS

On appeal to this court, defendant raises the following three

issues: (1) whether his conviction for armed robbery must be reduced

to a conviction for simple robbery, because the penalty for that offense

is disproportionate to the penalty for an offense involving identical

elements, i.e., armed violence based on robbery; (2) whether his

existing sentences for armed robbery and attempted murder were

authorized by the law in effect at the time of sentencing such that

those sentences are not void and no new sentencing hearing is

required; and (3) whether his 65-year aggregate consecutive sentence

is excessive and unfairly harsh when compared to the 12-year sentence

imposed on his codefendant, who was allowed to plead guilty to

reduced charges in exchange for his testimony against defendant. We

choose to address defendant’s second contention first.

Effective January 1, 2000, our legislature enacted Public Act

91–404, the stated purpose of which is “to deter the use of firearms

in the commission of a felony offense.” Pub. Act 91–404, §5, eff.

January 1, 2000 (codified at 720 ILCS 5/33A–1(b)(1) (West 2000)).

To accomplish this purpose, the legislature increased the penalties for

certain felonies, including attempted murder and armed robbery, when

the offender possesses or uses a firearm during the commission of the

offense. See 720 ILCS 5/8–4(c)(1), 18–2 (West 2000). These

additional penalties are commonly referred to as the “15/20/25-to-life”

sentencing provisions. 364 Ill. App. 3d at 209; People v. Guevara,

216 Ill. 2d 533, 536 (2005). Defendant contends that the appellate

court erred in vacating his sentences for armed robbery while armed

with a firearm and attempted murder as void and remanding for

resentencing, where the trial court had properly refused to enhance

those offenses under People v. Walden, 199 Ill. 2d 392 (2002),

overruled by People v. Sharpe, 216 Ill. 2d 481 (2005), and People v.
 

1We note that courts often use the terms “forfeit,” “waive,” and

“procedural default” interchangeably in criminal cases. For purposes of this

opinion, we henceforth use the term “forfeited” to mean issues that could

have been raised, but were not, and are therefore barred. See Blair, 215 Ill.

2d at 443-44.

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Morgan, 203 Ill. 2d 470 (2003), overruled by People v. Sharpe, 216

Ill. 2d 481 (2005), which were binding precedent at the time of

defendant’s sentencing. Whether a judgment is void is a question of

law which we review de novo. See People v. Rodriguez, 355 Ill. App.

3d 290, 293-94 (2005); see also Ford Motor Credit Co. v. Sperry, 214

Ill. 2d 371, 378-79 (2005).

Initially we note that, as defendant admits, his answer to the

State’s rehearing petition did not challenge the State’s claim that these

sentences were void, rather he was proceeding “on the assumption

that the sentences were void, in the context of discussing whether the

appropriate remedy was to remand for a new sentencing hearing or

simply to add the 15-year enhancement to the existing sentence.”

Defendant now acknowledges that this issue “boils down to whether

Sharpe should be applied retroactively” and, if so, whether Sharpe

renders the existing nonenhanced sentences void. The State argues

that defendant’s failure to raise this argument at any time prior to his

filings in this court have caused its forfeiture, citing People v. Enoch,

122 Ill. 2d 176, 186 (1988). See also People v. Blair, 215 Ill. 2d 427,

443-44 (2005) (issues that could have been raised, but were not, are

“forfeited”); People v. Rogers, 197 Ill. 2d 216, 221 (2001) (same).

Defendant, however, urges us to follow In re C.R.H., 163 Ill. 2d 263,

274 (1994), wherein this court interpreted the rule of waiver1 as an

admonition to the parties and not a limitation on the jurisdiction of

reviewing courts, particularly where necessary to “provide a just

result.”

This court has noted in the past that a challenge to the

constitutionality of a statute may be raised at any time. People v.

McCarty, 223 Ill. 2d 109, 123 (2006); In re J.W., 204 Ill. 2d 50, 61-

62 (2003). In McCarty, 223 Ill. 2d at 123, the defendant did not

forfeit his statutory interpretation argument for failure to raise it in a

posttrial motion or in his petition for leave to appeal where his related

proportionatepenalties and due process constitutional challenges were
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not subject to forfeiture. Thus, here, we find that defendant has not

forfeited his claim, as it involves a determination of whether applying

Sharpe retroactively in order to resentence him under the enhanced

penalty statute would be a due process violation. Defendant also urges

this court to address this issue for reasons of judicial economy, as it

is presented in another case currently pending before this court,

People v. Harvey, 366 Ill. App. 3d 119 (2006), appeal allowed, 221

Ill. 2d 654 (2006) (table). While we find it unnecessary to address this

“judicial economy” rationale for evading forfeiture, our review of the

appellate court’s reasoning in Harvey does reveal it to be instructive

in examining the issues raised in the case at bar.

In Harvey, the defendant was charged in indictment No.

00–CR–12069 with 11 felony counts, consisting of 3 counts of

attempted murder, 4 counts of armed robbery and 4 counts of

aggravated battery with a firearm, and with 1 count of armed robbery

in indictment No. 00–CR–12146. Following a consolidated bench

trial, the defendant was convicted of two of the counts in No.

00–CR–12069, and with armed robbery while armed with a firearm

(720 ILCS 5/18–2(a)(2) (West 2000)), in No. 00–CR–12146. On

appeal, defendant raised several arguments concerning his convictions

and sentences in No. 00–CR–12069. The State, in its motion for leave

to file additional authority, argued for the first time that defendant’s

18-year sentence for armed robbery while armed with a firearm in No.

00–CR–12146 did not conform to the statutorily mandated minimum

sentence of 21 years’ imprisonment and was therefore void. In his

response to the State’s motion, the defendant contended, inter alia,

that Sharpe did not apply retroactively to his sentence and, even if

Sharpe did apply retroactively, the penalty for armed robbery while

armed with a firearm is unconstitutionally disproportionate to the

penalty for armed violence armed with a firearm. Harvey, 366 Ill.

App. 3d at 130. The panel held that Sharpe applied retroactively to

cases pending on direct review at the time of that decision’s entry.

However, it also found that because the defendant’s armed robbery

while armed with a firearm sentence violated the proportionate

penalties clause under the identical-elements test,his 18-year sentence,

imposed in accord with the statute as it existed prior to the adoption

of Public Act 91–404, should stand. Harvey, 366 Ill. App. 3d at 134.
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Until this court’s recent decision in Sharpe, Illinois courts

recognized three ways in which a defendant’s sentence could violate

the proportionate penalties clause: (1) if it is cruel, degrading, or so

wholly disproportionate to the offense committed as to shock the

moral sense of the community; (2) if it is greater than the sentence for

an offense with identical elements; or (3) if it is greater than the

sentence for a similar offense that poses a greater threat to public

safety (cross-comparison). Sharpe, 216 Ill. 2d at 487, quoting People

v. Moss, 206 Ill. 2d 503, 522 (2003); Harvey, 366 Ill. App. 3d at 131.

Similar to the facts present in Harvey, at the time defendant herein

was sentenced in 2003, the armed robbery statute provided that armed

robbery committed while “armed with a firearm” (720 ILCS

5/18–2(a)(2) (West 2000)), “is a Class X felony for which 15 years

shall be added to the term of imprisonment imposed by the court”

(720 ILCS 5/18–2(b) (West 2002)). However, in People v. Walden,

199 Ill. 2d 392, 397 (2002), overruled by People v. Sharpe, 216 Ill.

2d 481 (2005), this court held that pursuant to the cross-comparison

test, the statutory 15-year mandatory enhancement for armed robbery

while armed with a firearm violated the proportionate penalties clause

of the Illinois Constitution and was “unenforceable.” Consequently,

the trial courts in the instant case and in Harvey found that they lacked

the authority, pursuant to Walden, to impose the 15-year “add on

penalty” to the defendants’ Class X sentences for armed robbery while

armed with a firearm. 364 Ill. App. 3d at 210; Harvey, 366 Ill. App.

3d at 131. Accordingly, following defendant’s conviction and

sentencing hearing, the trial court herein imposed a 12-year term,

which was within “ ‘the regular un-enhanced sentencing provisions’ ”

for the Class X offense of armed robbery. 364 Ill. App. 3d at 210-11;

720 ILCS 5/18–2(b) (West 2000); 730 ILCS 5/5–8–1(a)(3) (West

2000); cf. People v. Harvey, 196 Ill. 2d 444, 448 (2001) (if a trial

court imposes a sentence greater than that permitted by statute, the

excess portion of the sentence is void).

Similarly, the attempted murder statute provided, at the time of

defendant’s sentencing, that “an attempt to commit first degree

murder while armed with a firearm is a Class X felony for which 15

years shall be added to the term of imprisonment imposed by the

court.” 720 ILCS 5/8–4(c)(1)(B) (West 2000). However, in People

v. Morgan, 203 Ill. 2d 470, 491-92 (2003), overruled by People v.
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Sharpe, 216 Ill. 2d 481 (2005), this court, using a cross-comparison

analysis, struck down the 15-year enhancement for attempted first

degree murder where “a firearm was in defendant’s possession,” as

unconstitutionally disproportionate to second degree murder.

Accordingly, under Morgan, the trial court herein found that it was

prohibited from imposing the enhanced portion of the penalty, and

therefore sentenced defendant to a nonenhanced term of 18 years’

imprisonment, within the 6- to 30-year range for the Class X felony of

attempted murder. 364 Ill. App. 3d at 207-08, 223; 720 ILCS

5/8–4(c)(1) (West 2000); 730 ILCS 5/5–8–1(a)(3) (West 2000).

As in People v. Harvey, 366 Ill. App. 3d 119 (2006), this court

decided Sharpe, which expressly overruled the decisions in Walden

and Morgan, while defendant’s case was pending on direct review. In

Sharpe, this court stated:

“After much reflection, we have concluded that crosscomparison analysis has proved to be nothing but problematic

and unworkable, and that it needs to be abandoned. Those

cases that used such an analysis to invalidate a penalty are

overruled, and this court will no longer use the proportionate

penalties clause to judge a penalty in relation to the penalty for

an offense with different elements.” Sharpe, 216 Ill. 2d at 519.

Thus, Sharpe effectively “revived” the constitutionality of the 15-year

add on penalty for armed robbery while armed with a firearm and

attempted murder while armed with a firearm. See Harvey, 366 Ill.

App. 3d at 131. Put another way, because cross-comparison

proportionate penalties review was no longer part of our

jurisprudence following Sharpe, the Walden and Morgan decisions no

longer supported a finding that the 15-year sentencing enhancement

for armed robbery while armed with a firearm and attempted murder

while armed with a firearm violated the proportionate penalties clause

of the Illinois Constitution. See 364 Ill. App. 3d at 213, citing Sharpe,

216 Ill. 2d at 516-23; People v. Guevara, 216 Ill. 2d 533, 544-45

(2005). The question which we must now answer is whether Sharpe

should be applied retroactively to defendant’s case, which was

pending when our decision in Sharpe was rendered.

The State argues that Sharpe, which announced a new

constitutional rule, is to be applied retroactively so that defendant is

now eligible to be sentenced as mandated by the statutory 15-year
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sentence enhancement for both armed robbery while armed with a

firearm (720 ILCS 5/18–2(a)(2) (West 2000)), and attempted murder

while armed with a firearm (720 ILCS 5/8–4(c)(1)(B) (West 2000)).

Defendant contends that applying Sharpe retrospectively to vacate

nonenhanced sentences that were valid under the prior caselaw would

violate due process by making the law less favorable to him than it

previously was, and by denying him his right to notice and fair

warning. We agree with the State.

We initially observe that the issue of the State’s right to appeal

defendant’s sentence is not before us because defendant, either

originally or on rehearing, appealed his armed robbery and attempted

murder convictions, and Supreme Court Rule 615(b) specifically

grants this court the authority to “modify the judgment or order from

which the appeal is taken.” 134 Ill. 2d R. 615(b)(1); see also People

v. Dixon, 91 Ill. 2d 346, 352-54 (1982); People v. Scott, 69 Ill. 2d 85,

88 (1977). It is well established that judicial opinions announcing new

constitutional rules applicable to criminal cases are retroactive to

those cases pending on direct review at the time the new rule is

announced. People v. Ford, 198 Ill. 2d 68, 72-73 (2001); People v.

Erickson, 117 Ill. 2d 271, 288 (1987), citing Griffith v. Kentucky, 479

U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987); Harvey, 366 Ill.

App. 3d at 132. As the Supreme Court noted in Griffith, the failure to

apply a new constitutional rule to criminal cases pending on direct

review, even when that rule is a “ ‘clear break’ [from] the past,”

violates the basic norms of constitutional adjudication. Griffith, 479

U.S. at 322, 328, 93 L. Ed. 2d at 658, 661, 107 S. Ct. at 713, 716.

Under this reasoning, we find that the rule announced in Sharpe is of

constitutional dimension (see People v. Gersch, 135 Ill. 2d 384, 393-

95 (1990) (distinguishing a new rule of law that is statutory in origin

from one that is constitutionally based)) and, therefore applicable to

defendant’s case. See Harvey, 336 Ill. App. 3d at 132. This conclusion

is consistent with our decision in Guevara which, in a case pending on

direct appeal at the time Sharpe was decided, applied the holding in

Sharpe, overturning Moss, to reverse and remand a trial court’s

dismissal of the defendant’s indictment for home invasion based on

Moss. Guevara, 216 Ill. 2d at 539, 544-45, see also Harvey, 366 Ill.

App. 3d at 132; People v. James, 362 Ill. App. 3d 1202, 1206-07

(2006) (finding that defendant’s request to reduce his sentence for
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home invasion by 15 years because the mandatory 15-year

enhancement violated the proportionate penalties clause was

foreclosed by Guevara, even though he was sentenced prior to that

decision and while Moss had arguably invalidated the enhanced

sentencing provision for that offense).

Defendant argues that despite our holding in Guevara, Sharpe

cannot be applied retroactively to his case because Sharpe makes the

law less favorable to him than it was at the time of his sentencing. He

cites Bouie v. City of Columbia, 378 U.S. 347, 12 L. Ed. 2d 894, 84

S. Ct. 1697 (1964), where the United States Supreme Court held that

South Carolina could not retroactively apply a judicial decision

interpreting a criminal trespass statute in a way that expanded the

scope of the statute. Defendant claims that although applying Sharpe

retroactively would not expand the reach of the armed robbery and

attempted murder statutes by applying it to conduct that had

previously been lawful, it would increase the penalty range for each

offense beyond what could have been imposed when defendant was

sentenced.

We find defendant’s reliance on Bouie unpersuasive. As defendant

concedes, unlike Bouie, his conduct was prohibited by law at all

relevant points in time. Additionally, when defendant committed the

armed robbery and attempted murder in 2001, the enhanced sentences

for those offenses had not yet been found unconstitutional. While it is

correct to say that a defendant has a choice under which sentencing

scheme he wishes to be sentenced, i.e., the law in effect at the time the

offense was committed or that in effect at the time of sentencing

(People v. Hollins, 51 Ill. 2d 68, 71 (1972); People v. Malin, 359 Ill.

App. 3d 257, 261 (2005)), here, it was not the legislature which

changed the enhanced sentencing scheme during the pendency of

defendant’s case, but this court, in Walden and Morgan, which held

a portion of that sentencing scheme unconstitutional, and then

overruled itself in Sharpe. Thus, we find that the “new rule” in

Sharpe, announced while defendant’s case was pending on direct

appeal, does not afford defendant the same “choice of sentencing law”

applicable where a statutory change occurs during the prosecution of

a defendant’s case.

We are similarly unpersuaded by defendant’s argument that his

due process rights to notice and fair warning bar application of the 15-
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year firearm enhancements. While defendant contends that Sharpe’s

restricted interpretation of the proportionate penalties clause was a

sudden and radical departure from prior law, we find that despite the

proportionalityattacks to the 15/20/25-to-life sentence enhancements,

the statutes at issue remained intact and defendant was therefore on

notice that his conduct might fall within their scope. See Harvey, 366

Ill. App. 3d at 133; see also Rogers v. Tennessee, 532 U.S. 451, 462-

67, 149 L. Ed. 2d 697, 708-11, 121 S. Ct. 1693, 1700-03 (2001)

(Tennessee Supreme Court did not violate due process in judicially

abolishing the common law “year and a day rule” in murder cases and

applying that ruling to case of defendant which occurred when rule

was still in effect, because abolition of rule was neither “unexpected”

nor “indefensible” in light of prior court decisions). Furthermore,

defendant has not suggested that his purported reliance on the

unconstitutionality of the sentencing enhancements for armed robbery

and attempted murder had any effect on his decisions relating to plea

bargaining, whether to take a bench or a jury trial, or what trial

strategies to employ. See Harvey, 366 Ill. App. 3d at 133. We

therefore find that defendant is not deprived of due process by

application of the Sharpe decision.

Having now determined that Sharpe’s holding pertains to

defendant’s case, we must answer the remaining question, i.e.,

whether Sharpe renders defendant’s existing nonenhanced sentences

void. A sentence is void if it fails to conform to statutory

requirements. People v. Arna, 168 Ill. 2d 107, 113 (1995). Here,

although at the time of defendant’s sentencing Walden and Morgan

had rendered the 15-year enhanced penalties for his armed robbery

and attempted murder convictions unconstitutional, we find that the

overruling of those cases during the pendency of defendant’s appeal

has made the nonenhanced sentences imposed by the trial court

statutorily nonconforming and thus void. See 364 Ill. App. 3d at 223;

see also People v. Garcia, 179 Ill. 2d 55, 73 (1997) (trial court’s

imposition of concurrent sentences in certain instances where

consecutive sentences were mandated rendered defendants’ sentences

void). Thus, contrary to defendant’s contention in this court, but in

accord with his argument adopted by the appellate court, we believe

the proper remedy in this instance is to remand the cause to the trial

court for a new sentencing hearing. 364 Ill. App. 3d at 223-24, citing
 

2A category I weapon is a handgun, sawed-off shotgun, sawed-off rifle,

any other firearm small enough to be concealed upon a person,

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Arna, 168 Ill. 2d at 112-13 (it was within appellate court’s authority

to remand cause to trial court for determination of appropriate

sentences to be imposed consecutively where imposition of concurrent

sentences did not conform to statutory requirement and was void).

This procedure will provide the trial court an opportunity to

determine, within the statutory sentencing range, the length of the

sentence for each offense while considering defendant’s sentence in its

totality. People ex rel. Waller v. McKoski, 195 Ill. 2d 393, 401-02

(2001) (where trial court’s judgment vacated as void and remanded

for resentencing with sentences to run consecutively, “[i]t remains

within the discretion of the circuit court to determine, within the

permissible statutory sentencing range [citations], the length of each

sentence to be imposed”); see also Guevara, 216 Ill. 2d at 545, 547

(reversal of trial court’s judgment and remand for further proceedings

required where trial court had dismissed home invasion count as

unconstitutional due to proportionate penalties violation which was

overturned on appeal). Accordingly, we hold that defendant’s 18-year

sentence for attempted murder while armed with a firearm must be

vacated and the cause remanded to the trial court to impose a

sentence within the Class X range, enhanced by the 15-year

mandatory penalty set forth in 720 ILCS 5/8–4(c)(1)(B) (West 2000).

Although our decision on the retroactivity of Sharpe also makes

defendant eligible for a mandatory 15-year enhancement of his armed

robbery while armed with a firearm conviction (720 ILCS

5/18–2(a)(2), (b) (West 2000)), our disposition of this issue requires

consideration of defendant’s first contention: that sentencing him to

an enhanced term violates the proportionate penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, §11). Defendant contends

that the appellate court erred in rejecting his proportionate penalties

clause challenge to his armed robbery while armed with a firearm

conviction because, under the identical elements test, his conviction

for armed robbery while armed with a firearm is significantly more

severe than the sentence for the equivalent offense of armed violence

predicated on robbery with a category I or category II weapon (720

ILCS 5/18–2(a)(2), 33A–2(a) (West 2000)).2 Defendant argues that
semiautomatic firearm or machine gun. 720 ILCS 5/33A–1(c)(2) (West

2000). The parties do not dispute the fact that the firearm defendant used in

the commission of the armed robbery involved herein was a category I

weapon.

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the appropriate relief for this violation of the proportionate penalties

clause is a reversal of his conviction for armed robbery while armed

with a firearm, a reduction of the offense to the lesser-included offense

of simple robbery, and remand of the cause for sentencing on the

reduced charge.

As this court stated in Sharpe:

“All statutes carry a strong presumption of constitutionality.

[Citation.] To overcome this presumption, the party

challenging the statute must clearly establish that it violates the

constitution. [Citation.] 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. [Citation.]” Sharpe, 216

Ill. 2d at 487.

The proportionate penalties clause provides that “[a]ll penalties

shall be determined both according to the seriousness of the offense

and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, §11. “In analyzing a proportionate penalties

challenge, our ultimate inquiry is whether the legislature has set the

sentence in accord with the seriousness of the offense.” Guevara, 216

Ill. 2d at 543. As the constitutionality of a statute is purely a matter of

law, we review the question de novo. Sharpe, 216 Ill. 2d at 486-87.

“The identical elements test is an appropriate form of

proportionality review.” Harvey, 366 Ill. App. 3d at 133; see also

Guevara, 216 Ill. 2d at 544. In People v. Christy, 139 Ill. 2d 172

(1990), this court examined the defendant’s claim that his sentence for

armed violence predicated on kidnaping with a category I weapon, a

Class X felony punishable by 6 to 30 years’ imprisonment, was

unconstitutionally disproportionate to the penalty for aggravated

kidnaping, a Class I felony punishable by 4 to 15 years’ imprisonment,

because the elements of the offenses were identical. This court agreed,

finding that because the elements were identical and armed violence
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was punished more severely, the defendant was entitled to have his

conviction for armed violence vacated and the cause remanded for

sentencing on the offense with the lesser penalty, aggravated

kidnaping. Christy, 139 Ill. 2d at 174, 181.

In People v. Lewis, 175 Ill. 2d 412 (1996), the defendant was

charged with armed robbery and armed violence predicated on

robbery committed with a category I weapon. At the time Lewis was

decided, prior to the enactment of Public Act 91–404, armed robbery

was a Class X offense punishable by 6 to 30 years’ imprisonment, and

armed violence predicated on robbery with a category I weapon was

punishable by 15 to 30 years’ imprisonment. Lewis, 175 Ill. 2d at 418.

In the trial court, the defendant argued that the penalty for the offense

of armed violence predicated on robbery violated the proportionate

penalties clause because it was unconstitutionally disproportionate to

the penalty for the offense of armed robbery under an identicalelements test. The trial court agreed and dismissed the armed violence

charge. Lewis, 175 Ill. 2d at 414-15. This court affirmed the trial

court’s finding that the two offenses had identical elements and its

dismissal of the charge of armed violence predicated on robbery,

reasoning that the application of the armed violence statute violated

the proportionate penalties clause. Lewis, 175 Ill. 2d at 415-24.

The appellate court herein, when faced with the same

proportionate penalties, identical-elements challenge, found that

because the Lewis court determined that the penalty for armed

violence predicated on robbery was unconstitutionally

disproportionate to the penalty for armed robbery, the offense of

armed violence “ceased to exist” after Lewis, so that it could not be

used as a basis to conduct a proportionate penalties analysis. 364 Ill.

App. 3d at 217. Thus, the court rejected defendant’s proportionate

penalties argument. 364 Ill. App. 3d at 217.

Contrary to the appellate court’s conclusion, we hold that the

comparison of armed robbery while armed with a firearm and armed

violence predicated on robbery is permissible. While Lewis, 175 Ill. 2d

at 423, found the sentencing scheme for armed violence predicated on

armed robbery to be unconstitutional as penalizing the same conduct

more severely than did the armed robbery statute, and therefore

unavailable to prosecutors, that prohibition was eradicated by the

legislature’s enactment of Public Act 91–404. In other words, Public
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Act 91–404 “revived” the offense of armed violence predicated on

robbery when it amended the sentence for certain armed robberies to

add the 15/20/25-to-life provisions, creating more severe penalties for

those offenses than for armed violence predicated on robbery. See

Harvey, 366 Ill. App. 3d at 127. Therefore, we agree with the

appellate court in Harvey that, because the penalty for armed robbery

while armed with a firearm (720 ILCS 5/18–2(a)(2), (b) (West 2000))

is now greater than the penalty for armed violence predicated on

robbery with a category I or category II weapon (720 ILCS

5/33A–2(a), 33A–3(a) (West 2000)), the holding in Lewis cannot be

used as a basis to preclude comparison of the “revived” armed

violence offense to armed robbery while armed with a firearm for

purposes of proportionality review. See Harvey, 366 Ill. App. 3d at

127.

We also reject the State’s claim that because the legislature, in

enacting Public Act 91–404, excluded armed robbery as a predicate

offense of armed violence, it is inappropriate to compare the offenses

using the identical-elements test. Although it is true that Public Act

91–404 expressly excluded armed robbery as a predicate offense for

armed violence, the offense of robbery was not excluded (720 ILCS

5/33A–2(a) (West 2000)). The armed violence statute includes, as an

element of the offense, the commission of certain felonies, including

robbery, “while armed with a dangerous weapon.” 720 ILCS

5/33A–2(a) (West 2000). It therefore follows that every charge of

armed violence predicated on robbery would also be an armed

robbery. Thus, because the armed violence statute unambiguously

allows robbery to serve as a predicate offense, and those robberies are

inherently committed while armed, we must enforce the statute as

enacted and may not depart from the language by creating exceptions,

limitations, or conditions not expressed by the legislature. See People

v. Harvey, 366 Ill. App. 3d at 128, citing People v. Woodard, 175 Ill.

2d 435, 443 (1997).

Accordingly, we must now compare section 18–2(a)(2) of the

armed robbery statute with section 33A–2(a) of the armed violence

statute, as they exist today, to determine whether these two offenses

have identical elements but disparate sentences. In this case, defendant

was convicted of armed robbery while armed with a firearm. A person

commits that offense when he “takes property *** from the person or
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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 33A–1(c)(1) (West 2000). Clearly, the statutory

elements of these offenses are identical, and proportionate penalties

analysis is therefore appropriate. See Harvey, 366 Ill. App. 3d at 128,

133-34.

Given that we have determined 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, “common sense

and sound logic would seemingly dictate that their penalties be

identical.” Christy, 139 Ill. 2d at 181. However, the penalties for these

offenses are not identical. A violation of section 18–2(a)(2) is a Class

X felony, which carries a 6 to 30 year term, with a mandatory “add-on

penalty” of 15 years, making the possible sentence for armed robbery

while armed with a firearm 21 to 45 years (720 ILCS 5/18–2(a)(2),

(b) (West 2000)), while a violation of section 33A–2(a) of the armed

violence statute is a Class X felony punishable by a sentence ranging

from 15 to 30 years (720 ILCS 5/33A–3(a) (West 2000)). Thus, in

accordance with our holdings in Christy and Lewis, we find

defendant’s sentence for armed robbery while armed with a firearm

(720 ILCS 5/18–2(b) (West 2000)) 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 (720 ILCS

5/33A–3(a), (a–5) (West 2000)).

Further, we agree with the appellate court in Harvey, 366 Ill. App.

3d at 130, that although the State is not required to proceed on a

lesser offense when there is evidence sufficient to convict of a greater

offense (see People v. Cummings, 351 Ill. App. 3d 343, 347-48

(2004)), it is impermissible to allow the constitutional prohibition
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against disproportionate penalties for identical crimes to be relaxed

where the State decides to proceed only with the crime carrying a

greater penalty. The court in Lewis rejected an argument by the State

that the trial court, in dismissing the armed violence charge as

violating the proportionate penalties clause, usurped the State’s

discretion in evaluating the evidence and deciding what offenses to

charge. Lewis, 175 Ill. 2d at 422. The court cited the following

language from Christy:

“ ‘Generally, prosecutorial discretion is a valuable aspect of

the criminal justice system. [Citation.] In the present case,

however, prosecutorial discretion will effectively nullify the

aggravated kidnapping statute, as skilled State’s Attorneys

will usually seek the more severe sentence and, therefore,

charge defendants with armed violence rather than aggravated

kidnapping. An ineffective aggravated kidnapping statute is

not what the legislature intended when it enacted both the

armed violence statute and aggravated kidnapping statutes.’

Christy, 139 Ill. 2d at 180.” Lewis, 175 Ill. 2d at 417.

The Lewis court went on to say that the State’s argument

misconstrues the nature of the defendant’s challenge to the armed

violence statute. Lewis, 175 Ill. 2d at 422. The defendant did not

allege improper use of prosecutorial discretion, rather, he argued the

State had no authority, discretionary or otherwise, to charge the

offense because it violated the proportionate penalties clause. Lewis,

175 Ill. 2d at 422. Therefore, here, while the State was not required

to charge defendant with the “lesser offense” of armed violence

predicated on robbery with a category I or category II weapon,

because the evidence at trial clearly established, and defendant does

not contest, his guilt of armed robbery while armed with a firearm, we

must determine the appropriate sentence for this latter offense given

the proportionate penalties violation.

Although Sharpe applies retroactively to defendant’s case,

because we have found that the current sentencing statute for armed

robbery while armed with a firearm violates the proportionate

penalties clause of the Illinois Constitution, the trial court is precluded

on resentencing from using this statutory scheme. See Harvey, 366 Ill.

App. 3d at 134. However, defendant was originally sentenced while

Walden was still good law, invalidating the enhanced penalty for

armed robbery while armed with a firearm as unconstitutionally
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disproportionate under a cross-comparison analysis. Thus, the trial

court herein chose to impose a term of imprisonment in accordance

with the armed robbery statute as it existed before its amendment by

Public Act 91–404, which added the 15-year sentence enhancement.

364 Ill. App. 3d at 210. Prior to being amended by Public Act 91–404,

armed robbery was a Class X felony punishable by 6 to 30 years’

imprisonment (720 ILCS 5/18–2(b) (West 1998); 730 ILCS

5/5–8–1(a)(3) (West 1998)), and the trial court sentenced defendant,

within this range, to a 12-year term.

We agree with the trial court’s reasoning and therefore hold 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. See People v. Pizano, 347 Ill. App. 3d 128, 136 (2004)

(proper remedy where a statutory amendment is found to have

violated proportionate penalties clause is to remand the cause for a

new sentencing hearing under the statute in effect before the adoption

of the amendment); see also People v. Gersch, 135 Ill. 2d 384, 390

(1990) (“The effect of enacting an unconstitutional amendment to a

statute is to leave the law in force as it was before the adoption of the

amendment”). Thus, while the 12-year term originally imposed on

defendant is a proper one, we remand, as earlier noted, in order to

allow the trial court to reevaluate defendant’s sentence in light of his

cumulative sentence and to then resentence him within the range for

armed robbery as it existed prior to being amended by Public Act

91–404, eff. January 1, 2000. In light of this holding, we reject

defendant’s claim that his armed robbery while armed with a firearm

conviction should be reduced to “simple robbery.”

Finally, we address defendant’s contention that his 65-year

consecutive aggregate sentence is excessive and unfairly harsh when

compared to that of his codefendant, Warden. We note that, upon

rehearing in the appellate court, defendant argued only that his home

invasion sentence was excessive as compared to Warden, and that

because we have now vacated defendant’s sentences for both

attempted murder while armed with a firearm and armed robbery

while armed with a firearm, the 65-year cumulative sentence no longer

exists. However, because on remand the trial court will be required to
 

3The minimum cumulative sentence which the trial court could impose on

remand is 62 years’ imprisonment, i.e., the existing concurrent 35- and 2-

year respective terms for home invasion and criminal damage to property,

plus new consecutive minimum terms of 21 years’ imprisonment for

attempted murder while armed with a firearm and 6 years’ imprisonment for

armed robbery. See 720 ILCS 5/8–4(c)(1)(B) (West 2000); 720 ILCS

5/18–2(b) (West 2000); 730 ILCS 5/5–8–1(a)(3) (West 1998).

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impose a consecutive aggregate sentence of similar or greater length,3

we choose to address the issue. See In re C.R.H., 163 Ill. 2d at 274.

Absent an abuse of discretion by the trial court, sentences may not

be altered on review. People v. Stacey, 193 Ill. 2d 203, 209-10

(2000). “[A] sentence within statutory limits will be deemed excessive

and the result of an abuse of discretion by the trial court where the

sentence is greatly at variance with the spirit and purpose of the law,

or manifestly disproportionate to the nature of the offense.” Stacey,

193 Ill. 2d at 210. Here, defendant contends that the appropriateness

of his sentence cannot be meaningfully determined without

considering the 12-year aggregate consecutive sentence given to

Warden. Warden, however, though charged with the same offenses as

defendant, made an agreement with the State to testify against

defendant in exchange for the opportunity to enter a plea of guilty to

reduced charges.

Defendant concedes that, generally, one who proceeds to trial

cannot compare his sentence to the sentence imposed on a

codefendant who entered a negotiated guilty plea. People v.

Caballero, 179 Ill. 2d 205, 217 (1997). He argues, nevertheless, that

this general rule “should not be applied blindly or mechanically.” In

Caballero, 179 Ill. 2d at 218, this court refused to compare one

defendant’s posttrial sentence to another defendant’s negotiated

sentence because “dispositional concessions are properly granted to

defendants who plead guilty when the interest of the public in the

effective administration of criminal justice would thereby be served.”

Here, as in Caballero, 179 Ill. 2d at 218, by pleading guilty, Warden:

“(1) acknowledged his guilt and showed willingness to assume

responsibility for his conduct; (2) made a public trial unnecessary; and

(3) gave cooperation which resulted in the successful prosecution of

another offender engaged in equally serious or more serious criminal

conduct.”
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Defendant contends that a “defendant should not lose his right to

challenge the fairness of his sentence in comparison to a codefendant’s

sentence simply because the State made a strategic decision, accepted

by the trial court, to boost its case against the defendant by using its

bargaining power to secure the testimony of the codefendant.” While

we agree that Warden was placed in a different position from

defendant because “the State put him in that position,” we also agree

with the State that this result occurs in every case involving a

negotiated plea agreement based upon a promise to testify in a

codefendant’s case. Thus, given this court’s clearly stated belief in the

public benefit obtained through the State’s ability to negotiate such

plea agreements (Caballero, 179 Ill. 2d at 218), we find that the trial

court in this case did not abuse its discretion in failing to compare the

reduced sentence imposed on codefendant Warden, with the sentence

defendant received following a jury trial.

CONCLUSION

Based upon the foregoing, we affirm that portion of the appellate

court’s judgment whichvacates defendant’s nonenhanced sentence for

attempted murder and directs the circuit court, on remand, to conduct

a new sentencing hearing wherein the 15-year penalty mandated by

720 ILCS 5/8–4(c)(1)(B) (West 2000), is added to the base term of

between 6 and 30 years for this Class X offense. We further affirm the

appellate court’s judgment vacating defendant’s sentence for armed

robbery, but reverse the appellate court’s directive on remand, and

instruct the circuit court to resentence defendant to a term of between

6 and 30 years, in accordance with section 18–2 (720 ILCS 5/18–2

(West 1998)), as it existed prior to being amended by Public Act

91–404 (Pub. Act 91–404, eff. January 1, 2000). We affirm the

remainder of the appellate court’s judgment.

Appellate court judgment affirmed in part

and reversed in part;

cause remanded.