Docket No. 90958–Agenda 14–September 2001.

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

								SAUL GARCIA, Appellee.

	Opinion filed April 18, 2002.

	JUSTICE THOMAS delivered the opinion of the court:

	The primary issue in this case is whether the 15-year

sentencing enhancement for armed robbery while in possession of

a firearm (720 ILCS 5/18–2(a)(2), (b) (West 2000)) is valid and

enforceable. We hold that it is not.

BACKGROUND

	Defendant, Saul Garcia, was charged with several offenses,

including armed robbery while in possession of a firearm (720

ILCS 5/18–2(a)(2) (West 2000)). Although armed robbery is

classified generally as a Class X felony, subsection (b) of the armed

robbery statute provides that, for armed robberies while in

possession of a firearm, “15 years shall be added to the term of

imprisonment imposed by the court.” 720 ILCS 5/18–2(b) (West

2000). Prior to trial, defendant filed a motion arguing that the 15-

year sentencing enhancement violates the proportionate penalties

clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11). The

circuit court of Kane County agreed with defendant’s argument

and invalidated the 15-year enhancement. The State immediately

appealed under Supreme Court Rule 604(a)(1) (145 Ill. 2d R.

604(a)(1)), construing the trial court’s order as an effective

dismissal of the portion of the indictment charging defendant with

armed robbery while in possession of a firearm.  Because the trial

court’s ruling invalidates a statute of this state, the appeal was

taken directly to this court. 134 Ill. 2d R. 603.

ANALYSIS

	A statute is presumed constitutional, and the party challenging

the statute bears the burden of demonstrating its invalidity. In re K.C., 186 Ill. 2d 542, 550 (1999). This court has a duty to construe a statute in a manner that upholds its validity and constitutionality

if it reasonably can be done. People v. Malchow, 193 Ill. 2d 413, 418 (2000). Whether a statute is constitutional is a question of law

that we review de novo. Malchow, 193 Ill. 2d at 418.

	This appeal is controlled by our decision People v. Walden, No. 90976 (April 18, 2002). In Walden, this court concluded that the 15-year sentencing enhancement for armed robbery while in

possession of a firearm violates the proportionate penalties clause

of the Illinois Constitution and therefore is unenforceable. Walden, judges’ proof at 10sli p op. at 5. Given the identity of issue between this appeal and

Walden, we hold that the trial court’s order invalidating the 15- year enhancement in this case was proper.

	By way of a cross-appeal, defendant seeks dismissal of the

charges against him on the grounds that the delay occasioned by

this appeal has denied him his rights under the speedy-trial

provisions of the Code of Criminal Procedure of 1963 (725 ILCS

5/103–5 (West 2000)). In making this argument, defendant

overlooks Supreme Court Rule 604(a)(4), which provides:

			“The time during which an appeal by the State is

pending is not counted for the purpose of determining whether an accused is entitled to discharge under section

103–5 of the Code of Criminal Procedure of 1963.”

(Emphasis added.) 145 Ill. 2d R. 604(a)(4).

We therefore conclude that defendant’s speedy-trial argument is

wholly without merit.

CONCLUSION

	The judgment of the circuit court of Kane County is affirmed,

and the cause is remanded for further proceedings consistent with

this opinion.

Affirmed and remanded.

	CHIEF JUSTICE HARRISON, specially concurring:

	Garcia was charged by information in the circuit court of Kane

County with armed robbery in violation of section 18–2(a) of the

Criminal Code of 1961 (720 ILCS 5/18–2(a) (West 2000)) and

with three other offenses in connection with the February 1, 2000, attack on and robbery of Gwen Flores. The information was

superceded by a grand jury indictment charging the same offenses.

Prior to trial, Garcia moved to declare the sentencing portion of the

armed robbery statute, section 18–2(b) (720 ILCS 5/18–2(b) (West

2000)), unconstitutional. His motion was granted. This appeal by

the State followed.

	The armed robbery statute formerly provided that “[a] person

commits armed robbery when he or she violates [the robbery

statute] while he or she carries on or about his or her person, or is

otherwise armed with a dangerous weapon.” 720 ILCS 5/18–2(a)

(West 1996). The statute further provided that armed robbery was

a Class X felony. 720 ILCS 5/18–2(b) (West 1996).

	The terms of the statute were amended by Public Act 91–404,

which took effect January 1, 2000. Under the amended version of

the law, there are now four different subcategories of the offense.

What differentiates those subcategories is whether the dangerous

weapon with which the person was armed during the robbery was

a firearm, and, if so, whether the firearm was discharged and, if

discharged, whether “great bodily harm, permanent disability,

permanent disfigurement, or death” was proximately caused

thereby to another person. 720 ILCS 5/18–2(a)(1) through (a)(4)

(West 2000).

	The significance of the categorization pertains to sentencing.

All subcategories remain Class X felonies, but subsection (b) of the

statute, as amended, mandates the imposition of additional years of

imprisonment where the weapon involved in the armed robbery

was a firearm. If the weapon was a firearm, the offense 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

2000). If the weapon was a firearm and was personally discharged

by the offender, the offense is a Class X felony “for which 20 years

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

720 ILCS 5/18–2(b) (West 2000). Finally, if the weapon was a

firearm and was personally discharged by the offender and “great

bodily harm, permanent disability, permanent disfigurement, or

death to another person” was proximately caused thereby, the

offense is a Class X felony “for which 25 years *** shall be added to the term of imprisonment imposed by the court.” 720 ILCS

5/18–2(a)(4), (b) (West 2000).

	Garcia does not take issue with subsection (a) of the statute

(720 ILCS 5/18–2(a) (West 2000)), which creates the four new

subcategories of armed robbery. Garcia’s challenge pertains

exclusively to the extended-term sentencing provisions in

subsection (b) (720 ILCS 5/18–2(b) (West 2000)). According to

Garcia, those sentencing provisions violate the proportionate

penalties clause of the Illinois Constitution, which provides that

“[a]ll penalties shall be determined *** according to the

seriousness of the offense.” Ill. Const. 1970, art. I, §11.

	The circuit court found Garcia’s contention meritorious and

based its order declaring the sentencing provisions unconstitutional

on the proportionate penalties clause. In urging that the circuit

court’s order be upheld, Garcia renews his proportionate penalties

challenge. He further argues, however, that the sentencing

provisions are unconstitutional for the additional reason that they

violate due process in that they fail to “set a fixed maximum

sentence for the crime” and utilize an impermissible double

enhancement.

	In addition to advancing his substantive claims, Garcia seeks

to uphold the circuit court’s ruling by arguing that it is not

appealable by the State under our Rule 604(a)(1) (188 Ill. 2d R.

604(a)(1)), because it did not have the substantive effect of

dismissing the armed robbery charge, as Rule 604(a)(1) requires.

In Garcia’s view, the ruling by the circuit court merely invalidated

the enhanced sentencing provisions of that statute. The State’s

ability to prosecute him for armed robbery in violation of section

18–2(a)(2) of the Criminal Code of 1961 (720 ILCS 5/18–2(a)(2)

(West 2000)) remains unimpeded.

	This argument is well taken. Unlike People v. Walden, No. 90976 (April ___18, 2002), and People v. Devenny, No. 91291 (April ___18, 2002), the defendant here did not move to dismiss the charges

against him, and the circuit court’s order did not invalidate the

entire statute. All Garcia sought and all the circuit court granted

was a declaration that the enhanced sentencing provisions of the

statute were invalid. Accordingly, the circuit court’s order did not

have the substantive effect of dismissing the charge. The underlying prosecution remains pending. The State is simply precluded from

seeking imposition of an enhanced sentence in the event Garcia is

convicted.

	Whether the State may appeal a nonfinal order entered by the

circuit court in a criminal case is determined exclusively by Rule

604(a)(1) (188 Ill. 2d R. 604(a)(1). People v. Truitt, 175 Ill. 2d 148, 151 (1997). The order entered by the circuit court in this case,

which merely precludes the State from seeking a certain sentence,

does not fall within any of the provisions of that rule. The State

therefore has no right to appeal the order to this or any court of

review, and its appeal should have been dismissed for lack of

jurisdiction. People v. Ruiz, 194 Ill. 2d 454, 465 (2000) (Harrison, C.J., dissenting).

	Although this issue was presented to our court, my colleagues

rejected it without explanation in an order entered prior to oral

argument. Having taken that action, the court subsequently

assumed that it was free to consider the appeal on the merits. I

note, however, that even if we had jurisdiction to entertain the

State’s appeal, which we do not, there is a separate impediment to

our consideration whether the circuit court acted properly in

upholding Garcia’s challenge: that challenge is premature. Unlike

the defendants in Walden and Devenny, whose armed robbery charges were dismissed, Garcia is still awaiting trial. He is

presumed innocent and may never be subject to the penalty

provisions he contests. That is fatal to his claim, for unless and

until there is an adjudication of guilty and imposition of sentence,

our court can make no pronouncement concerning the

reasonableness of the penalties attached to a statute. That is so

because any such a pronouncement would be rendered gratuitous

by a subsequent adjudication of not guilty. People v. Matkovick, 101 Ill. 2d 268, 277 (1984), citing People v. Haron, 85 Ill. 2d 261, 280 (1981). The circuit court should therefore have denied

Garcia’s motion to invalidate the challenged sentencing provisions,

and the validity of those provisions should not have been addressed

by our court on appeal.

	In People v. Lewis, 175 Ill. 2d 412 (1996), which was subsequently followed in People v. Davis, 177 Ill. 2d 495 (1997), our court did consider the proportionality of criminal penalties where the defendant had not yet been convicted. In those cases,

however, the defect in the penalties was so intertwined with the

offenses charged that the prosecutions could not go forward. Once

the circuit court found the penalty provisions invalid, it dismissed

the charges. Once the charges were dismissed, there was nothing

more to be done. The matter was at an end. Accordingly, a review

of the penalties’ validity by our court was not subject to challenge

on the grounds that it was premature. Unlike the present case,

where the prosecution of the defendant remains pending, there

were no circumstances in which a ruling by this court could later

have been rendered advisory.

	In addition, the decision in Lewis, which was the predicate for Davis, overlooked our prior decisions in People v. Matkovick, 101 Ill. 2d 268, 277 (1984), and People v. Haron, 85 Ill. 2d 261, 280 (1981). Instead, it invoked People v. Bailey, 167 Ill. 2d 210 (1995), People v. Farmer, 165 Ill. 2d 194 (1995), People v. Johns, 153 Ill. 2d 436 (1992), and People v. Hamm, 149 Ill. 2d 201 (1992). Although those cases did consider proportionality issues

where the defendant had not yet gone to trial, none of them

purported to take up the question of whether a defendant should

be permitted to challenge a sentencing scheme where he has yet to

be found guilty. The issue was simply not addressed.1 Because a judicial opinion is authority only for what is actually decided

(Board of Governors of State Colleges & Universities for Chicago State University v. Illinois Fair Employment Practices Comm’n, 78 Ill. 2d 143, 149 (1979)), those cases were not proper precedent

for the principle for which Lewis cited them.

	There is a cogent policy against overruling cases by

implication (Anderson v. Brown, 340 Ill. App. 613, 622 (1950)), and we would have had no reason to depart from that policy with

respect to Matkovick or Haron. The holding in those cases that a court should not address the constitutionality of sentencing

provisions where the defendant still faces trial and has not yet been

found guilty is a sound one. That is so for two reasons. First, as

noted in Matkovick and Haron, a subsequent adjudication of not guilty would render any pronouncement by our court gratuitous.

Second, allowing a defendant to challenge a sentencing statute

before he has been found guilty is contrary to the principles that a

court should address the constitutionality of a statute only when

doing so is essential to the disposition of a case and should avoid

declaring legislation unconstitutional if the case does not require it.

See East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School District No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 408 (1997). Matkovick and Haron therefore remain good law. To the extent that Lewis and Davis conflict with those decisions, they should be overruled.

	Adherence to Matkovick and Haron would not foreclose Garcia from challenging the constitutionality of the extended-term

sentencing provisions in section 18–2(b) of the Criminal Code of

1961 (720 ILCS 5/18–2(b) (West 2000)). If Garcia were ultimately

found guilty and given a sentence he believed to be

unconstitutional, he could file a motion to challenge the

constitutionality of the sentencing statute at that time. If his motion

were denied, he could appeal the final judgment to the appellate

court pursuant to Supreme Court Rules 602 and 603 (134 Ill. 2d

Rs. 602, 603).

	Although I cannot sanction the majority’s disregard of these

matters, I nevertheless believe that immediate intervention by our

court is appropriate under the facts of this case. In Walden and Devenny, which were not flawed by the problems attendant to this case, our court properly reached the merits of the challenged

statutory provisions and found them to be unconstitutional. The

rule announced in those cases applies to all pending cases,

including this one. The provisions invalidated in Walden and Devenny can no longer be enforced against any defendant by any court in Illinois. Accordingly, in the exercise of our general supervisory authority, we should enter an order directing the circuit

court to dismiss the armed robbery charge against Garcia.2 

	JUSTICE KILBRIDE joins in this special concurrence.