Docket No. 89795–Agenda 33–May 2001.

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

								LEON MILLER, Appellee.

Opinion fileid d November 21, 2002.

	JUSTICE FITZGERALD delivered the opinion of the court:

	Defendant, Leon Miller, a 15-year-old juvenile, was charged

with two counts of first degree murder (720 ILCS 5/9–1(a)(1)

(West 1996)) based upon accountability. Defendant was

transferred to the criminal division of the Cook County circuit

court and prosecuted as an adult. 705 ILCS 405/5–4(6)(a) (West

1996). Following a jury trial, defendant was convicted of both

counts, and the State requested that the circuit court sentence

defendant to natural life imprisonment under the multiple-murder

provision of the Unified Code of Corrections. See 730 ILCS

5/5–8–1(a)(1)(c)(ii) (West 1996). The circuit court declined to

impose the statutorily mandated sentence, holding that application

of the statute to defendant would offend the proportionate

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

§11) and the eighth amendment of the United States Constitution

(U.S. Const., amend. VIII). Instead, the circuit court sentenced

defendant to a term of 50 years in prison. The State appealed

directly to this court. We affirm.

BACKGROUND

	On November 19, 1997, Tommy Jones and Keith Alexander

were shot and killed outside a Chicago apartment complex.

Defendant was among those charged with their murders. In a

court-reported statement made to the police and the prosecution

within hours of the shooting, defendant described the incident and

his participation therein.

	According to defendant, on the night of the murders, Arthur

Beckom and Kentrell Stoutmire observed people walking through

their neighborhood that they believed belonged to a rival gang.

Beckom and Stoutmire approached defendant, who was standing

outside on a corner in the neighborhood, and asked him to stand as

a lookout. Defendant saw that both Beckom and Stoutmire had guns in their possession, and although defendant never handled or

touched the guns, he agreed to stand as a lookout. One minute

later, Beckom and Stoutmire fired gunshots in the direction of

Jones and Alexander, who both died as a result of their injuries.

Once the shooting began, defendant ran to his girlfriend’s house.

	Four individuals were charged for their participation in the

shooting. The first degree murder indictment charged Stoutmire

and Beckom as the alleged shooters and defendant and another 15-

year-old male, Douglas Baskerville, for their participation as

lookouts. See 720 ILCS 5/9–1(a)(1) (West 1996). At separate jury

trials, Beckom and Baskerville were acquitted. Stoutmire, who was

17 years old at the time of the murders, was convicted and

sentenced to natural life in prison. Defendant was also convicted of

the murders. At sentencing, however, through amicus curiae, the Edwin F. Mandel Legal Aid Clinic, defendant argued that a

sentence of natural life imprisonment, pursuant to the multiple-

murder sentencing statute, violated the proportionate penalties

clause of the Illinois Constitution, the prohibition against cruel and

unusual punishment contained within the federal constitution, as

well as international law, which prohibits the imposition of a

natural life sentence on a juvenile. Conversely, the State argued

that the circuit court was obligated by the statute to impose a

sentence of natural life imprisonment.

	At the conclusion of the sentencing hearing, the circuit court

discussed its inability to sentence defendant pursuant to the terms

of the multiple-murder sentencing statute:

		“I have from the moment that the Jury came back with

their findings been very concerned about what this meant,

what this meant to [defendant] as a 15-year-old child,

what this meant to society at large, to be part of a society

where a 15-year-old child on a theory of accountability

only, passive accountability, would suffer a sentence of life

in the Penitentiary without the possibility of parole. *** I

feel that it is clear that in my mind this is blatantly unfair

and highly unconscionable, and let me state that I do not

believe for a second that Mr. Miller is innocent of these

charges. I believe he received a fair trial. I believe he was

adequately represented. I believe he was proved guilty beyond a reasonable doubt, and I believe he should suffer

harsh criminal consequences for acting as a look-out in

this case, but to suggest that he ought to receive a

sentence of life without the possibility of parole, I find to

be very, very hard to swallow to the point where I can

describe it as unconscionable. I am concerned that a

person under the age of 18 under Illinois law can do

everything that John Gacy did, can torture and abuse and

murder over 30 people, and would be in the same boat as

[defendant] right now looking at a sentence of a minimum

and maximum of life without the possibility of parole.

* * *

			I have a 15-year-old child who was passively acting as

a look-out for other people, never picked up a gun, never

had much more than–perhaps less than a minute–to

contemplate what this entire incident is about, and he is in

the same situation as a serial killer for sentencing

purposes.”

	The circuit court then concluded: “[A]s applied to [defendant],

and by that I mean as a juvenile on the strict theory of

accountability, that the [multiple-murder sentencing statute] as

applied to him is unconstitutional under both Illinois and Federal

law and it violates the Illinois Constitution under the

proportionality section, and it violates the 8th Amendment of the

United States Constitution.” Defendant was sentenced to a term of

50 years’ imprisonment.

ANALYSIS

	In this appeal, we address whether the multiple-murder

sentencing statute is unconstitutional as applied to a juvenile

offender convicted under a theory of accountability.

	At the outset, we recognize that this case presents an issue of

jurisdiction. The State invokes this court’s jurisdiction pursuant to

Supreme Court Rule 302(a) (134 Ill. 2d R. 302(a)). However, Rule

302(a) does not provide a basis for the State to appeal in this case:

Rule 302(a) applies to civil, not criminal, cases. See 177 Ill. 2d R.

612.

	Supreme Court Rule 603 (134 Ill. 2d R. 603) would appear to

provide a criminal counterpart to Rule 302(a). Rule 603 provides:

			“Appeals in criminal cases in which a statute of the

United States or of this State has been held invalid and

appeals by defendants from judgments of the circuit courts

imposing a sentence of death shall lie directly to the

Supreme Court as a matter of right. All other appeals in

criminal cases shall be taken to the Appellate Court.”

Yet, in People v. Truitt, 175 Ill. 2d 148, 151 (1997), this court held that Rule 603 only specifies what court should hear the case and

does not afford the State an independent basis for appellate review.

In Truitt, the State appealed a pretrial ruling made by the circuit court that section 115–15 of the Code of Criminal Procedure was

unconstitutional. We held that the State’s right to appeal was

limited to the situations identified in Supreme Court Rule 604(a)(1)

(145 Ill. 2d R. 604(a)(1)):

			“Initially, the State claimed that we had jurisdiction

pursuant to our Rule 302(a) (134 Ill. 2d R. 302(a)). That

rule, however, does not apply to criminal appeals. 134 Ill.

2d R. 612. Once it realized this, the State next invoked

Rule 603 (134 Ill. 2d R. 603) ***:

				***

			The problem with reliance on this rule is that it was not

intended to create an independent basis for appellate

review. It merely specifies which court should hear a case

that is otherwise appealable. Where, as here, the State

takes issue with a nonfinal order entered by the circuit

court in a criminal case, the threshold question of whether

that order is appealable by the State is determined

exclusively by Rule 604(a)(1).” [citation] Truitt, 175 Ill. 2d at 151.

Rule 604(a) restricts the State’s right to appeal in criminal cases to

those orders or judgments which have the substantive effect of (1)

dismissing a charge for any of the grounds enumerated in section

114–1 of the Code of Criminal Procedure of 1963 (725 ILCS

5/114–1 (West 1994)); (2) arresting judgment because of a

defective indictment, information or complaint; (3) quashing an arrest or search warrant; or (4) suppressing evidence. 145 Ill. 2d R.

604(a)(1). We held that because the circuit court order did not fall

within Rule 604(a), jurisdiction was lacking. Truitt, 175 Ill. 2d at 151.

	However, two years later we silently deviated from our

holding in Truitt and exercised jurisdiction pursuant to Rule 603 in a case procedurally similar to the present case. In People v. Wooters, 188 Ill. 2d 500 (1999), this court considered the constitutionality of a mandatory sentencing provision held

unconstitutional by the trial court at sentencing. Similar to the case

before us, in Wooters, the State directly appealed to this court based upon the trial court’s finding that the sentencing statute was

unconstitutional. Wooters, 188 Ill. 2d at 504. Despite our holding in Truitt, we considered the appeal under Rule 603 without reference to either Rule 604(a) or Truitt.

	Likewise, we consider the instant appeal under Rule 603.

Pursuant to the Illinois Constitution of 1970, this court has the sole

authority to regulate procedure with respect to appeals in criminal

cases, subject to the limitations of the double jeopardy clauses. See

U.S. const., amends. V, XIV; Ill. Const. 1970, art. I, §10.

Consistent with this authority, we find that this court must have the

ability to review, in the first instance, a declaration of

unconstitutionality arising in the circuit court. A finding of

unconstitutionality in criminal cases by a circuit court affects the

prosecution of the case and the future prosecution of similar cases.

See People v. Young, 82 Ill. 2d 234, 246-47 (1980) (“[s]ociety also has a broader, secondary interest in the coherent development of

the law. *** The denial of review in a particular case may thus

affect not only the ability of the State to prosecute a particular case

but also its ability to prosecute similar cases in the future”).

Moreover, our finding that Rule 603 affords the State a basis of

independent review corrects the unreasonable result created by

Truitt. Specifically, we note that the State may appeal as of right “whenever a question arising under the constitution of the United

States or this State arises for the first time in the appellate court or

as a result of the action of the appellate court.” 177 Ill. 2d R.

612(b) (adopting civil appeal Rule 317 in criminal cases). Under

Rule 612, had the circuit court rejected defendant’s challenge that the statute was unconstitutional and, on appeal, the appellate court

declared the statute unconstitutional this court’s jurisdiction would

be clear. No purpose is served by limiting the State’s right of

appeal when a circuit court, rather than the appellate court,

invalidates a statute on constitutional grounds. Therefore, we find

that our holding in Truitt with respect to Rule 603 and the State’s ability to directly appeal a circuit court’s finding of

unconstitutionality was overly broad. Accordingly, we exercise

jurisdiction in this matter pursuant to Rule 603.

	Turning to the merits, our review begins with the presumption

that the statute is constitutional. Because of this presumption, the

party challenging the statute bears the burden of showing its

invalidity. People v. Davis, 177 Ill. 2d 495, 501 (1997); People v. Miller, 171 Ill. 2d 330, 333 (1996). A circuit court’s finding that a statute is unconstitutional is reviewed de novo. People v. Malchow, 193 Ill. 2d 413, 418 (2000).

	The multiple-murder sentencing statute provides, in pertinent

part:

			“(a) Except as otherwise provided in the statute defining

the offense, a sentence of imprisonment for a felony shall

be a determinate sentence set by the court under this

Section, according to the following limitations:

				(1) for first degree murder,

* * *

					(c) the court shall sentence the defendant to a

term of natural life imprisonment when the death

penalty is not imposed if the defendant,

						***

						(ii) is a person who, at the time of the

commission of the murder, had attained the age of

17 or more and is found guilty of murdering an

individual under 12 years of age; or, irrespective

of the defendant’s age at the time of the

commission of the offense, is found guilty of

murdering more than one victim[.]” 730 ILCS

5/5–8–1(a)(1)(c)(ii) (West 1996).

	We have repeatedly recognized that the legislature has

discretion to prescribe penalties for defined offenses. See People v. Taylor, 102 Ill. 2d 201, 208 (1984). The legislature’s discretion necessarily includes the power to prescribe mandatory sentences,

even if these mandatory sentences restrict the judiciary’s discretion

in imposing sentences. Taylor, 102 Ill. 2d at 208. However, the power to impose sentences is not without limitation; the penalty

must satisfy constitutional constrictions. See Davis, 177 Ill. 2d at 502; People v. Morris, 136 Ill. 2d 157, 161 (1990); People ex rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542 (1981).

	Here, the circuit court refused to impose the sentence

mandated by the statute because it found that the statute, as

applied to defendant, offends the Illinois Constitution’s

proportionate penalties clause and the United States Constitution’s

cruel and unusual punishment clause. In contrast, the State argues

that the multiple-murder sentencing statute does not exempt

juvenile offenders, but in fact expressly declares that juveniles are

eligible for natural life. Thus, because the statute makes no

exception for those convicted as accomplices as opposed to those

convicted as principals, the statute’s plain language required the

circuit court to sentence defendant to natural life imprisonment.

The State further argues that Illinois courts have previously upheld

the constitutionality of the multiple-murder sentencing statute as

applied to juveniles against proportionate penalty challenges. See Taylor, 102 Ill. 2d at 204-05; see also People v. Cooks, 271 Ill. App. 3d 25, 35-42 (1995) (holding that the multiple-murder

sentencing statute did not violate the United States or Illinois

Constitutions as applied to a 14-year-old principal offender);

People v. Wages, 261 Ill. App. 3d 576, 589 (1994) (holding that the “fact that defendant was 15 years old at the time that he

committed the two murders is irrelevant” because “regardless of

age, a defendant found guilty of murdering more than one victim

must be sentenced to a term of natural life imprisonment”); People v. Rice, 257 Ill. App. 3d 220, 228-29 (1993) (holding that the multiple-murder sentencing statute as applied to a mentally

retarded 16-year-old offender does not violate the eighth

amendment of the United States Constitution); People v. Rodriguez, 134 Ill. App. 3d 582, 593 (1985) (holding that defendant’s youth did not require special consideration and that the

application of the multiple-murder sentencing statute to the 16-

year-old principal offender was consistent with the Illinois

Constitution’s due process clause and the eighth amendment of the

United States Constitution).

	We reject the State’s assertion that the question at issue in this

appeal has been decided. Illinois courts have only upheld

application of the statute to juvenile principals and adult

accomplices. The issue we address–the application of the statute to

a juvenile convicted upon a theory of accountability–is an issue of first impression. We begin with a discussion of the proportionate

penalties clause of the Illinois Constitution.

	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. While

courts of review are generally “ ‘reluctant to override the judgment

of the General Assembly with respect to criminal penalties’ ”

(People v. Hamm, 149 Ill. 2d 201, 219 (1992), quoting People v. Gonzales, 25 Ill. 2d 235, 240 (1962)), it is also true that when defining crimes and their penalties, the legislature must “consider

the constitutional goals of restoring an offender to useful

citizenship and of providing a penalty according to the seriousness

of the offense” (Taylor, 102 Ill. 2d at 206). With regard to the statute at issue, we have recognized that the legislature considered

the possible rehabilitation of an offender who commits multiple

murder, and the seriousness of that offense, in determining that a

mandatory minimum sentence of natural life imprisonment is

appropriate for the offense of multiple murders. Taylor, 102 Ill. 2d at 206 (the mandatory sentencing provision of the multiple-murder

sentencing statute does not offend article I, section 11, as applied

to a 16-year-old principal offender).

	However, the instant matter concerns a different type of

challenge under the proportionate penalties clause and a different

set of circumstances not addressed in Taylor. We have recognized three different forms of proportionality review. A statute may be

deemed unconstitutionally disproportionate if (1) the punishment

for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community; (2)

similar offenses are compared and the conduct that creates a less

serious threat to the public health and safety is punished more

harshly; or (3) identical offenses are given different sentences.

Davis, 177 Ill. 2d at 503-04; see People v. Farmer, 165 Ill. 2d 194, 209-10 (1995); Miller, 171 Ill. 2d at 334; People v. Steppan, 105 Ill. 2d 310, 320 (1985); People v. Gonzales, 25 Ill. 2d 235, 240 (1962). Here, the circuit court ruled that application of the

multiple-murder sentencing statute to defendant was “highly

unconscionable,” and, therefore, we first consider whether the

statute as applied to defendant is shocking to the moral sense of the

community.

	In this context, we have stated:

		“When the legislature has authorized a designated

punishment for a specified crime, it must be regarded that

its action represents the general moral ideas of the people,

and the courts will not hold the punishment so authorized

as either cruel and unusual, or not proportioned to the

nature of the offense, unless it is a cruel or degrading

punishment not known to the common law, or is a

degrading punishment which had become obsolete in the

State prior to the adoption of its constitution, or is so

wholly disproportioned to the offense committed as to

shock the moral sense of the community.” People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 421-22 (1894).

	We have never defined what kind of punishment constitutes

“cruel,” “degrading,” or “so wholly disproportioned to the offense

as to shock the moral sense of the community.” This is so because,

as our society evolves, so too do our concepts of elemental

decency and fairness which shape the “moral sense” of the

community. See, e.g., Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 642, 78 S. Ct. 590, 598 (1958) (whether a punishment

shocks the moral sense of the community is based upon an

“evolving standard[ ] of decency that mark[s] the progress of a

maturing society”). Similarly, our United States Supreme Court has

stated in the context of the eighth amendment that “[p]roportionality review under those evolving standards should be

informed by ‘ “objective factors to the maximum possible

extent.” ’ ” Atkins v. Virginia, 536 U.S. ___, ___, 153 L. Ed. 2d 335, 344, 122 S. Ct. 2242, 2247 (2002), quoting Harmelin v. Michigan, 501 U.S. 957, 1000, 115 L. Ed. 2d 836, 868, 111 S. Ct. 2680, 2704 (1991), quoting Rummel v. Estelle, 445 U.S. 263, 274- 75, 63 L. Ed. 2d 382, 391, 100 S. Ct. 1133, 1139 (1980).

However, this “objective evidence, though of great importance,

[does] not ‘wholly determine’ the controversy, ‘for the

Constitution contemplates that in the end our own judgment will

be brought to bear on the question.’ ” Atkins, 536 U.S. at ___, 153 L. Ed. 2d at 345, 122 S. Ct. at 2247, quoting Coker v. Georgia, 433 U.S. 584, 597, 53 L. Ed. 2d 982, 992, 97 S. Ct. 2861, 2868

(1977).

	We review the gravity of the defendant’s offense in connection

with the severity of the statutorily mandated sentence within our

community’s evolving standard of decency. Here, a sentence of

natural life imprisonment would be the result of three converging

statutes. Section 5–4(6)(a) of the Juvenile Court Act of 1987 (705

ILCS 405/5–4(6)(a) (West 1996)) mandates that all 15- or 16-

year-old offenders charged with murder be automatically

transferred and prosecuted as adults in criminal court. The

accountability statute (720 ILCS 5/5–2(c) (West 1996)) effectively

bars courts from considering the offender’s degree of participation

in the crime by making all persons who participate in a common

criminal design equally responsible. See People v. Cooper, 194 Ill. 2d 419, 434-35 (2000) (discussing accountability and the “common

design” rule). Finally, the multiple-murder sentencing statute (730

ILCS 5/5–8–1(a)(1)(c)(ii) (West 1996)) does not allow a court to

consider the age of the offender or the offender’s participation in

the crime at the time of sentencing. Under the automatic transfer

statute, defendant was considered to be an adult for purposes of

trial. Under the accountability statute, defendant was considered

equal to the actual shooter. Therefore, defendant was tried as if he

were the adult shooter in the crime. Under the sentencing statute,

defendant was then subject to the most severe punishment. When

these three statutes converge, a court never considers the actual facts of the crime, including the defendant’s age at the time of the

crime or his or her individual level of culpability.

	Accordingly, we hold that the penalty mandated by the

multiple-murder sentencing statute as applied to this defendant is

particularly harsh and unconstitutionally disproportionate. We

agree with defendant that a mandatory sentence of natural life in

prison with no possibility of parole grossly distorts the factual

realities of the case and does not accurately represent defendant’s

personal culpability such that it shocks the moral sense of the

community. This moral sense is particularly true, as in the case

before us, where a 15-year-old with one minute to contemplate his

decision to participate in the incident and stood as a lookout during

the shooting, but never handled a gun, is subject to life

imprisonment with no possibility of parole–the same sentence

applicable to the actual shooter. Our decision does not imply that

a sentence of life imprisonment for a juvenile offender convicted

under a theory of accountability is never appropriate. It is certainly

possible to contemplate a situation where a juvenile offender

actively participated in the planning of a crime resulting in the

death of two or more individuals, such that a sentence of natural

life imprisonment without the possibility of parole is appropriate.

However, that is not the case before this court–as recognized by

Judge Linn during sentencing, this case presents the least culpable

offender imaginable, a 15-year-old who had “about a minute from

the time this plan began until the act was completed by other

persons.”

	Our decision is consistent with the longstanding distinction

made in this state between adult and juvenile offenders, a

distinction underscored by the reality that our state was the first to

create a court system dedicated exclusively to juveniles. 1899 Ill.

Laws 131; see also People ex rel. Bradley, 148 Ill. at 423. Illinois led the nation with our policy towards the treatment of juveniles in

first forming the juvenile court, and, traditionally, as a society we

have recognized that young defendants have greater rehabilitative

potential. “There is in the law of nature, as well as in the law that

governs society, a marked distinction between persons of mature

age and those who are minors. The habits and characters of the latter are, presumably, to a large extent as yet unformed and

unsettled. This distinction may well be taken into consideration by

the legislative power in fixing the punishment for crime, both in

determining the method of inflicting punishment and in limiting its

quantity and duration.” People ex rel. Bradley, 148 Ill. at 423; see also Thompson v. Oklahoma, 487 U.S. 815, 838, 101 L. Ed. 2d 702, 720, 108 S. Ct. 2687, 2700 (1988). Therefore, in many cases

courts have discretion to grant leniency to a juvenile even if he or

she is prosecuted as an adult. See, e.g., People v. Kolakowski, 319 Ill. App. 3d 200, 217 (2001) (noting that defendant’s sentence was

less than her codefendant’s because of her age and potential for

rehabilitation). While it is true that the multiple-murder sentencing

statute explicitly applies regardless of the offender’s age (Taylor, 102 Ill. 2d 201), this case does not only concern the sentence of a

juvenile. Rather, this case concerns the sentence of a juvenile

convicted under a theory of accountability. And as with juvenile offenders, courts in some cases may grant leniency in sentencing to

offenders guilty by accountability. Disparate sentences between an

offender convicted by accountability and a principal offender reflect

the different degrees of participation in the crime. See, e.g., People v. Godinez, 91 Ill. 2d 47, 54-56 (1982) (finding that a defendant who stood as a lookout deserved a lesser sentence than his

codefendant who was convicted as the principal). However, the

convergence of the Illinois transfer statute, the accountability

statute, and the multiple-murder sentencing statute eliminates the

court’s ability to consider any mitigating factors such as age or

degree of participation. A life sentence without the possibility of

parole implies that under any circumstances a juvenile defendant

convicted solely by accountability is incorrigible and incapable of

rehabilitation for the rest of his life. The trial judge in this case did

not agree with such a blanket proposition. We also decline to find

that the sentence mandated by the multiple-murder sentencing

statute in this case satisfies the proportionate penalties clause of the

Illinois Constitution. We affirm the trial court’s finding that the

multiple-murder sentencing statute as applied to defendant violates

the proportionate penalties clause of the Illinois Constitution.

Accordingly, we need not address additional issues raised in this

appeal.

CONCLUSION

	For the foregoing reasons, we find that section

5–8–1(a)(1)(c)(ii) of the Unified Code of Corrections (730 ILCS

5/5–8–1(a)(1)(c)(ii) (West 1996)) as applied to defendant, a

juvenile offender convicted under a theory of accountability, violates the proportionate penalties clause of the Illinois

Constitution (Ill. Const. 1970, art. I, §11). We affirm the circuit

court’s imposition of a term of 50 years’ imprisonment.

Affirmed.

	JUSTICE RARICK took no part in the consideration or

decision of this case.