SECOND DIVISION

January 9, 2007

No. 1-04-3077

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

) Circuit Court of

Plaintiff-Appellee, ) Cook County.

)

v. )

)

HERRON DOUGLAS, ) Honorable

) Dennis A. Dernbach,

Defendant-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WOLFSON delivered the opinion of the

court:

Herron Douglas was convicted by the trial court of two

counts of attempt first degree murder of a peace officer. His

sentence was 35 years in prison for each count, to run

concurrently. He asks us to reduce his convictions to simple

attempt first degree murder and to remand the case for

resentencing on the lesser charge.

The State opposes any reduction of charge. It also

contends, for the first time, the 35-year sentences are void. 

Instead, says the State, Douglas must be resentenced and the

trial court must apply a mandatory 20-year enhancement of the

sentences.

We affirm the convictions, but we decline to order

resentencing of the defendant.

I. Attempt First Degree Murder of Two Peace Officers
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Defendant admits he fired shots at two men as they stood on

a street corner, patting down a member of his gang. But he

contends the evidence was not sufficient to support the trial

court’s finding that he knew or should have known he was firing

at peace officers.

It is not our role to second-guess a trial court’s factual

findings concerning the weight of the evidence or the credibility

of witnesses. People v. Young, 128 Ill. 2d 1, 51, 538 N.E.2d 453

(1989). Instead, we view the evidence in the light most

favorable to the prosecution, and we determine whether any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. People v. Hall, 194 Ill. 2d

305, 329-30, 743 N.E.2d 521 (2000). We will not reverse a

conviction unless the evidence is so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of defendant’s

guilt. Young, 128 Ill. 2d at 51.

The evidence shows that at the time of the confrontation,

the officers were standing in a well-lit lot about 75 feet away

from defendant. The officers were in plain clothes, but were

also wearing bullet-proof vests and police belts with handcuffs

and weapons. Officer Lopez had his shield in a visible location.

The evidence further shows that both officers recognized

defendant because of previous contacts. When he approached, they

were clearly performing a pat-down search of another man, John
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Martinez. In addition, both officers and Gilberto Irizarry

testified that Martinez yelled out, "Betty up, Betty up," a

street reference for police. At that point, Officer Magallon

pulled out his badge and immediately identified himself as a

police officer. Officer Lopez heard him shout "police, police." 

In addition, Irizarry testified that when he and defendant exited

the house, the men standing on the corner told defendant at least

twice "to put the pistol down," leading him to believe that they

were police officers.

From this evidence, the trial court could reasonably infer

defendant knew or should have known the two men on the street

were police officers in the course of performing their duties

when he shot at them. We affirm the trial court’s finding that

defendant was proved guilty beyond a reasonable doubt of attempt

first degree murder of two peace officers. People v. Pasch, 152

Ill. 2d 133, 215-16, 604 N.E.2d 294 (1992); People v. Ruiz, 312

Ill. App. 3d 49, 57-58, 726 N.E.2d 704 (2000). 

II. The 20-Year Sentencing Enhancement

At the sentencing hearing on July 27, 2004, the trial court

noted the sentencing range for attempt first degree murder of a

peace officer is 20 to 80 years. The court also referred to the

enhancement provisions for attempt murder with a firearm,

contained in 720 ILCS 5/8-4(c)(1)(B), (C), and (D) (West 2004). 

The State informed the court the enhancement provisions did not
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apply. The court agreed and sentenced the defendant to the two

concurrent 35-year terms.

The defendant does not directly challenge the sentence he

received. Nor did the State attempt to appeal the court’s

sentence. In its Appellee’s brief in this case, filed April 10,

2006, the State, for the first time, contended the defendant’s

sentence is void because it does not contain the mandatory 20-

year enhancement. 

What happened between July 27, 2004, and April 10, 2006,

that caused the State’s change of position? It was People v.

Sharpe, 216 Ill. 2d 481, 839 N.E.2d 492 (2005).

In the three years before Sharpe was decided the Illinois

Supreme Court had invalidated nine penalties based on a finding

that "a penalty violates the proportionate penalties clause [Ill.

Const. 1970, art. I, §11] where similar offenses are compared and

conduct that creates a less serious threat to the public health

and safety is punished more severely." People v. Moss, 206 Ill.

2d 503, 522, 795 N.E.2d 208 (2003). The comparison referred to

is known as the "cross-comparison analysis." Sharpe, 216 Ill. 2d

at 488.

The relevant cross-comparison analysis cases are Moss, which

involved armed robbery where a firearm is discharged; People v.

Walden, 199 Ill. 2d 392, 769 N.E.2d 928 (2002), an armed robbery

with a firearm case; and People v. Morgan, 203 Ill. 2d 470, 786
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N.E.2d 994 (2003), a case concerning attempt first degree murder

with a firearm. It was Morgan that was relied on at this

defendant’s sentencing for the reason why the 20-year enhancement

could not apply.

People v. Sharpe overruled Moss, Walden, and Morgan, along

with the line of cases that led to those decisions. The court

said:

"We hold today that a defendant may not

challenge a penalty under the proportionate

penalties clause by comparing it to the

penalty for an offense with different

elements." Sharpe, 216 Ill. 2d at 533. 

The supreme court adhered to the Sharpe holding in two

subsequent cases--People v. Guevara, 216 Ill. 2d 533, 837 N.E.2d

901 (2005), a home invasion with a firearm case; and in In re

M.T., 221 Ill. 2d 517, 852 N.E.2d 792 (2006), an indecent

solicitation of an adult case.

The State contends Sharpe renders the defendant’s sentence

void and it must be corrected, citing People v. Arna, 168 Ill. 2d

107, 113, 658 N.E.2d 445 (1995), where the supreme court held a

sentence "which does not conform to a statutory requirement is

void." 

The State’s supposition that the defendant’s sentence is

void forms the basis for its claim that the mandatory enhancement
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must be applied. That supposition is based on the theory that

Sharpe reaches back and wipes out Moss, Walden, and Morgan--as if

they never existed, never had any viability. This assumption of

retroactivity necessarily is based on the notion that Sharpe

decided Moss, Walden, and Morgan violated the separation of

powers provision of the Illinois Constitution. Ill. Const. 1970,

art. II, §1. 

We believe the State is creating a house of cards built on a

defective foundation. We have carefully examined Sharpe,

Guevara, and In re M.T.. Nowhere in any of these decisions does

the supreme court say Moss, Walden, or Morgan violated any

constitutional provision. Sharpe rejected the cross-comparison

analysis and overruled the cases that used it because it "has

proved to be nothing but problematic and unworkable, and that it

needs to be abandoned." Sharpe, 216 Ill. 2d at 519. The supreme

court clearly was departing from stare decisis, finding good

cause to do so "when governing decisions are unworkable or are

badly reasoned." Sharpe, 216 Ill. 2d at 520. 

Time after time, in Sharpe and the cases that follow it, the

supreme court carefully avoided any suggestion that Moss, Walden,

or Morgan were constitutionally defective. See Guevara, 216 Ill.

2d at 544 ("In People v. Sharpe, *** we held that we would no

longer recognize the third type of proportionate penalties

challenge--the cross-comparison challenge"); and In re M.T., 221
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Ill. 2d at 521 ("*** we no longer apply cross-comparison analysis

in proportionate penalties cases.")

The closest Sharpe came to a constitutional reference was at

216 Ill. 2d at 520, where it set out its three reasons for

"departing from stare decisis and abandoning cross-comparison

proportionate penalties analysis." First, said the court, the

governing decisions are "badly reasoned." Second, the decisions

have proved "unworkable." Third, 

"this analysis set this court on a collision

course with separation of powers principles. 

Were this court to keep using the crosscomparison analysis as it had been, this

court would no longer be constrained to serve

as a mere check on the legislature, ensuring

compliance with the proportionate penalties

clause of the Illinois Constitution. 

Instead, we would be free to act as a

superior legislative branch, substituting our

judgment for the legislature whenever we

disagreed with the penalties it set. Thus,

‘serious detriment *** prejudicial to public

interests’ is likely to arise from this case

law." (Emphasis added.) Sharpe, 216 Ill. 2d

at 521. 
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The court’s third reason is a far cry from a constitutional

denunciation of Moss, Walden, and Morgan. It is a warning of

danger ahead, a cautionary note, should the court’s course not

change. In this way, the court avoids the potential reopening of

sentences imposed on the assumption Moss, Walden, and Morgan

meant what they said. It also avoids repeated litigation over

the applicability of ex post facto principles. See People v.

Granados, 172 Ill. 2d 358, 367-68, 666 N.E.2d 1191 (1996). Nor

will the court have to face assertions that the overruling of a

previous case concerning validity of a penal statute must be

applied prospectively only when the overruling decision makes the

law less favorable to the defendant than it previously was. 

People v. Patton, 57 Ill. 2d 43, 48, 309 N.E.2d 572 (1974).

We conclude the defendant’s sentence is not void. People v.

Arna does not apply here. The sentences were valid when imposed

and they remain valid. The trial judge had the power and

authority to impose them without concern for the statutory

enhancement. We will not send the case back for resentencing. 

We are aware decisions from two other divisions of this

court have taken the view that Sharpe announces a new rule that

applies to a pre-Sharpe sentencing. One is People v. Lee, No. 1-

04-2258 (Ill. App. Ct., April 27, 2006), petition for rehearing

pending; the other is People v. Harvey, 366 Ill. App. 3d 119, 851

N.E.2d 182 (2006). 
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In Lee, the defendant claimed the armed robbery statute

under which he was convicted is void because its penalty violates

the proportionate penalties clause of the Illinois Constitution. 

He relied on the cross-comparison analysis abandoned by the court

in Sharpe. Holding Sharpe announced a new rule of

"constitutional dimensions," the court not only rejected the

defendant’s contention, it allowed the State to successfully move

to add a 15-year enhancement. Lee, No. 1-04-2258, slip op. at 9.

Harvey held "the new rule announced in Sharpe is of

constitutional magnitude***." Harvey, 366 Ill. App. 3d at 132. 

Therefore, Sharpe was applied retroactively to void the

defendant’s sentence and require the enhancement. Harvey, 366

Ill. App. 3d at 132.

To the extent that Lee and Harvey conflict with our holding

in this case, we decline to follow them. Lee and Harvey hold the

defendant’s original sentencing was rendered void by Sharpe and

Guevara. For reasons we have stated, we do not agree. 

III. Applicability of the Sentencing Enhancement

There is another, independent, reason for us to hold the

defendant’s sentence cannot be sent back for enhancement.

The defendant was convicted and sentenced for attempt first

degree murder of a peace officer. The offense is contained in

section 5/8-4(c)(1)(A) (720 ILCS 5/8-4(c)(1)(A) (West 2000)). It

carries a Class X sentence of 20 to 80 years. There is no
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sentencing enhancement in section 5/8-4(c)(1)(A). The

enhancements for attempt murder concerning a firearm are

contained in sections 5/8-4(c)(1)(B), (C), and (D), each a

different offense.

That is the plain, unambiguous language of the statute. 

People v. McClure, 218 Ill. 2d 375, 382, 843 N.E.2d 308 (2006). 

We will not assume legislative error without some good reason to

do so. By creating a Class X offense carrying 20 to 80 years,

the legislature well might have believed it was authorizing trial

judges to impose severe sentences. That is, the sentence already

is enhanced, without the need for further provision. Class X

offenses ordinarily carry a sentence of 6 to 30 years. 730 ILCS

5/5-8-1(a)(3) (West 2000). We see no reason to add words to the

statute. That is not our role. People v. Wooddell, 219 Ill. 2d

166, 173, 847 N.E.2d 117 (2006). 

CONCLUSION

For the reasons stated, we affirm the defendant’s

convictions and sentences and we reject the State’s request to

send the cause back to the trial court for imposition of an

enhanced sentence.

Affirmed.

HOFFMAN, and HALL, JJ., concur.