People v. Butler , 994 N.E.2d 89 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Butler, 2013 IL App (1st) 120923
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KENDRICK BUTLER, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-12-0923
Filed June 28, 2013
Held The 80-year sentence imposed on defendant for first-degree murder was
(Note: This syllabus upheld over his contention, inter alia, that the firearm enhancement
constitutes no part of applied to him was unconstitutionally vague, since the sentence was
the opinion of the court within the statutory range, the crime was heinous, the scope of the
but has been prepared sentencing range under the enhancement is clear and definite, the
by the Reporter of standards for imposing the enhancement are not vague, and the argument
Decisions for the that the enhancement statute permits “double enhancement” has been
convenience of the rejected by the Illinois Supreme Court.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-12418; the
Review Hon. Rosemary Grant Higgins, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Christopher Kopacz, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Michelle Katz, and Tasha-Marie Kelly, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 This appeal arises from a March 14, 2012 order entered by the circuit court of Cook
County which sentenced defendant-appellant Kendrick Butler (Butler) to 80 years’
imprisonment for first-degree murder. On appeal, Butler argues that: (1) the trial court
abused its discretion in imposing an 80-year sentence because it failed to properly consider
significant mitigating factors; and (2) the firearm sentence enhancement statute that was
applied to his sentence is unconstitutionally vague on its face and as applied to him. For the
following reasons, we affirm the judgment of the circuit court of Cook County.
¶2 BACKGROUND
¶3 On May 3, 2006, Gregory Dugar (Gregory) sustained a gunshot wound to the head and
died as a result of his injury. On February 8, 2007, Butler was arrested in Cedar Rapids,
Iowa, on a matter unrelated to this case. The Cedar Rapids police informed the Chicago
police that Butler was in custody. On May 10, 2007, Chicago police detectives Sean Forde
(Detective Forde) and Victor Kubica (Detective Kubica) traveled to Cedar Rapids, Iowa, to
complete the extradition process. Butler was placed under arrest and transported back to
Chicago. Butler was charged with six counts of first-degree murder and one count of
aggravated discharge of a firearm. The State proceeded to trial on four counts of first-degree
murder. Following a jury trial, Butler was found guilty of first-degree murder. The circuit
court of Cook County sentenced Butler to 50 years’ imprisonment on count I of the
indictment pursuant to section 9-1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1)
(West 2006)), which charged first-degree murder for intentionally or knowingly killing
Gregory while armed with a firearm. The trial court also sentenced Butler to 30 years’
imprisonment on count V of the indictment pursuant to section 9-1(a)(1) (720 ILCS 5/9-
1(a)(1) (West 2006)), which charged first-degree murder for intentionally or knowingly
killing Gregory with a firearm and personally discharging a firearm that proximately caused
Gregory’s death.
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¶4 Subsequently, Butler filed a direct appeal arguing multiple claims of ineffective
assistance of counsel, as well as a claim that the trial court improperly imposed sentences for
two counts of first-degree murder when there was only one victim. People v. Butler, No. 1-
09-0893 (2011) (unpublished order under Supreme Court Rule 23). This court affirmed
Butler’s conviction, but held that Butler’s sentence was erroneous and found that the trial
court may have intended the 30-year sentence to be a mandatory enhancement rather than a
separate sentence. Thus, this court remanded the matter to the trial court for resentencing. On
remand, the trial court resentenced Butler to 50 years’ imprisonment on count V, and an
additional 30 years’ imprisonment as a mandatory sentence enhancement to be served
consecutively for personally discharging a firearm that proximately caused Gregory’s death
pursuant to section 5-8-1(a)(1)(d)(iii) of the Unified Code of Corrections (Code) (730 ILCS
5/5-8-1(a)(1)(d)(iii) (West 2012)). This appeal followed.
¶5 The following facts were established by Butler’s January 22, 2009 trial and his direct
appeal. At 8 p.m. on May 3, 2006, Paul Allen (Allen) was driving his vehicle with Kyesha
Kohnke (Kohnke) in the front seat, and Brian Smith (Smith) and Gregory in the backseat.
Allen stopped at a stop sign at the intersection of Maypole and LaCrosse Avenues in
Chicago. As Allen proceeded through the intersection, approximately five gunshots were
fired at the back of his vehicle. Allen and Kohnke testified that they did not see who fired the
shots. Gregory sustained a gunshot wound to the head and later died as a result of his injury.
¶6 Eric Robertson (Robertson) testified that on May 3, 2006, he was riding in Chanell
Richmond’s (Richmond) vehicle with Richmond and Tremaine Brown (Brown). Robertson
stated that Brown’s birthday was that day, and that the group was smoking marijuana.
Robertson testified that at some point, the group drove to the intersection of Maypole and
LaCrosse. When the group arrived at the intersection, Robertson got out of the vehicle and
stood on the corner. Robertson testified that Derrick Young (Young) was standing on the
corner with him. Robertson testified that he did not remember anything after talking with
Young. Robertson stated that he did not remember talking with Chicago police, an assistant
State’s Attorney, or a grand jury about the shooting on May 3, 2006.
¶7 Detective Kubica testified that on May 7, 2006, he and Detective Forde interviewed
Robertson. Detective Kubica testified that Robertson stated that he was scared and did not
want to become a “snitch.” Later during the interview, Robertson told Detective Kubica that
he saw a “red box type vehicle” approach the intersection of Maypole and LaCrosse.
Robertson stated that he saw Young sitting on a bicycle at the intersection. Detective Kubica
testified that Robertson stated that as he approached Young, he heard a gunshot. Robertson
told Detective Kubica that he turned and saw Butler standing behind the red vehicle.
Detective Kubica testified that Robertson later identified Butler in a photo lineup, as the
shooter.
¶8 Assistant State’s Attorney Bonnie Greenstein (ASA Greenstein) testified that on June 6,
2007, she presented Robertson to the grand jury. Robertson’s grand jury testimony was
admitted into evidence at trial. In his grand jury testimony, Robertson stated that he initially
told police that he was not near the intersection of Maypole and LaCrosse on May 3, 2006.
However, he testified that he later told police that he was near the intersection on May 3,
2006, and that he saw Young at the intersection. Robertson stated that he heard a gunshot and
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then turned and saw Butler shooting at a red four-door vehicle. Robertson told ASA
Greenstein that the police had treated him well and no one had made any threats or promises
in return for his grand jury testimony.
¶9 Brown testified that at 8 p.m. on May 3, 2006, he was in a vehicle with Robertson and
Richmond. Brown testified that he exited the vehicle at the intersection of Maypole and
LaCrosse. Brown stated that Young and other individuals were standing on the corner.
According to Brown, Butler arrived at the intersection shortly thereafter. Brown testified that
he saw a maroon vehicle approach the intersection. Brown stated that he saw three males and
one female inside the maroon vehicle. Brown testified that he did not remember what
happened after the maroon vehicle reached the intersection. He stated that he did not
remember hearing any gunshots being fired. However, he later testified that he heard
gunshots when he was two houses away from the intersection. Brown testified that he did not
see the person who was firing the gunshots.
¶ 10 Detective Forde testified that on May 5, 2006, Brown was arrested and brought to the
police station to be interviewed. Detective Forde testified that he and Detective Kubica had
a videotaped conversation with Brown, during which he stated that he saw Butler shoot at
a vehicle at the intersection of Maypole and LaCrosse. Detective Kubica testified that Brown
identified Butler as the shooter in a photo lineup.
¶ 11 Assistant State’s Attorney Art Heil (ASA Heil) testified that on September 28, 2006, he
took Brown’s handwritten statement. In his handwritten statement, Brown stated that earlier
in the day on May 3, 2006, he heard from an unknown individual that Butler had been
“jumped” by members of the Four Corner Hustlers street gang. Brown stated that he was a
member of the Black P Stone street gang, and Butler was a member of the Mafia Insane Vice
Lords street gang. Further, Brown stated that when he arrived at the intersection of Maypole
and LaCrosse on May 3, 2006, Butler was on the north side of Maypole near some bushes.
Brown, Robertson, and Young were across the street from Butler. Brown stated that he saw
an old maroon vehicle approach the intersection. Brown recognized the vehicle as belonging
to members of the Four Corner Hustlers street gang. Brown noticed that the vehicle
contained three black males and one black female. Brown stated that Butler walked up to the
rear of the maroon vehicle and began firing a gun at the people inside the vehicle. Brown
stated that Butler fired the gun five or six times. Brown saw the head of the male passenger
in the back seat “slump down.” Brown stated that the maroon vehicle then drove away, and
Butler ran westbound down Maypole.
¶ 12 On October 27, 2006, Brown appeared in front of a grand jury. Assistant State’s Attorney
Francisco Lamas (ASA Lamas) testified regarding Brown’s grand jury testimony, which was
consistent with his handwritten statement taken on September 28, 2006.
¶ 13 Shawn Jenkins (Jenkins) then testified for the State. Jenkins testified that on October 22,
2006, he was arrested at his residence. He stated that he spoke to police after he was arrested.
Jenkins testified that he did not give the police any information regarding the shooting on
May 3, 2006. Jenkins denied that he had a telephone conversation with Butler a week after
the shooting. Jenkins also denied that Butler stayed at his residence for a period of time in
2006. Jenkins stated that Butler did not tell him anything about the shooting on May 3, 2006.
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¶ 14 Detective Kubica testified that he and Detective Forde questioned Jenkins about the
shooting. Jenkins told Detective Kubica that after the shooting, Butler called Jenkins from
a Greyhound bus station and asked if he could move in with Jenkins for a while. Jenkins told
Detective Kubica that he allowed Butler to live at his residence until September 2006.
Jenkins stated that Butler admitted that on May 3, 2006, he fired four or five gunshots at a
vehicle. Butler told Jenkins that he may have fired into the wrong vehicle, and may have
killed the wrong person. Jenkins told Detective Kubica that he overheard a telephone
conversation between Butler and an individual named Ken. Jenkins stated that Butler told
Ken to get rid of the gun that he used in the shooting.
¶ 15 Assistant State’s Attorney Mary Innes (ASA Innes) testified that on October 23, 2006,
she took Jenkins’ handwritten statement. Jenkins’ handwritten statement was admitted into
evidence. ASA Innes testified regarding Jenkins’ handwritten statement which was largely
consistent with Detective Kubica’s testimony. ASA Lamas testified that on October 23,
2006, he presented Jenkins to the grand jury. ASA Lamas published Jenkins’ grand jury
testimony in open court, which was largely consistent with the handwritten statement taken
by ASA Innes and Detective Kubica’s testimony.
¶ 16 At the close of evidence, the jury found Butler guilty of first-degree murder. Additionally,
the jury found that during the commission of the offense, Butler personally discharged a
firearm that proximately caused the death of Gregory. On March 12, 2009, Butler filed a
motion for new trial which the trial court denied.
¶ 17 On March 13, 2009, the trial court held a sentencing hearing. The trial court considered
many factors in aggravation and mitigation. In aggravation, the State presented the testimony
of multiple witnesses including Phyllis Dugar (Phyllis), Gregory’s mother. Phyllis read from
a prepared statement and stated that Gregory was a beloved family member who aspired to
play basketball in college. Phyllis stated that her entire family was affected by Gregory’s
death, particularly Gregory’s sister, who considered Gregory to be a father figure.
Additionally, the State admitted into evidence Butler’s two prior felony convictions for
possession of a controlled substance with intent to deliver, as well as two adjudications of
delinquency for drug-related offenses when Butler was a minor. The State argued that Butler
fired a gun at the vehicle without knowing whether the passengers inside the vehicle were
his enemies. The State contended that Butler killed the wrong person and that Gregory had
no opportunity to protect himself from the gunfire. The State requested a substantial
sentence.
¶ 18 In mitigation, defense counsel argued that Butler is a product of traumatic social history.
Defense counsel stated that when Butler was four years old, he witnessed his mother commit
murder. Butler’s mother was sentenced to 60 years’ imprisonment, and he was raised by two
different fathers and his grandmother. Defense counsel also stated that Butler suffers from
post-concussion syndrome as a result of getting beaten while he was in custody. Defense
counsel contended that Butler has rehabilitative potential and requested that the trial court
impose the minimum sentence.
¶ 19 In imposing Butler’s sentence, the record discloses that the trial court considered all
factors in aggravation and mitigation including testimony from all the witnesses at the
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sentencing hearing, and Butler’s prior felony convictions. The trial court also considered
Butler’s history as a juvenile. The trial court commented that Butler was given numerous
opportunities to rehabilitate himself, however, he failed to take advantage of any of those
opportunities. The trial court acknowledged that Butler has had a regrettable life, and that his
only stability in life was the care he received from his grandmother. However, the trial court
stated that it was very moved by the statements of Gregory’s family members who indicated
that he was an innocent victim who did not participate in gangs or narcotics. The trial court
noted that at the sentencing hearing, Butler denied his involvement in the shooting rather
than showing remorse for his actions. The court suggested that the lack of remorse did little
to convince the court of his potential for rehabilitation. The trial court concluded that
Butler’s offense was especially heinous because Gregory was an innocent victim, and the loss
of his life will impact the lives of his family members forever. Thus, the trial court sentenced
Butler to 50 years’ imprisonment on count I of the indictment, and 30 years’ imprisonment
on count V of the indictment.
¶ 20 On March 25, 2009, Butler filed a motion to reconsider his sentence, which the trial court
denied. Subsequently, Butler filed a direct appeal. This court affirmed Butler’s conviction,
but remanded the matter to the trial court for resentencing.
¶ 21 On remand, the trial court held a resentencing hearing on March 14, 2012. The trial court
stated that it was considering all of the factors presented in aggravation and mitigation,
including the statements made by the attorneys for both parties at the resentencing hearing.
The trial court acknowledged that Butler did not make a statement in remorse because he
wanted to preserve his appeal rights. The trial court stated that it would not use the fact that
Butler failed to make a statement in contrition in determining the sentence. The trial court
resentenced Butler to reflect 50 years’ imprisonment on count V, and 30 years’ imprisonment
as a mandatory sentence enhancement to be served consecutively for personally discharging
a firearm that proximately caused Gregory’s death. Thus, Butler was again sentenced to a
total of 80 years’ imprisonment.
¶ 22 Also, on March 14, 2012, Butler filed a motion to reconsider his sentence which the trial
court denied. On that same day, Butler filed a timely notice of appeal. Therefore, this court
has jurisdiction to consider Butler’s arguments on appeal pursuant to Illinois Supreme Court
Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Feb. 6, 2013).
¶ 23 ANALYSIS
¶ 24 We determine the following issues on appeal: (1) whether the trial court abused its
discretion in imposing an 80-year sentence because it failed to properly consider significant
mitigating factors; and (2) whether the firearm sentence enhancement statute that was applied
to Butler’s sentence is unconstitutionally vague on its face and as applied to him.
¶ 25 We first determine whether the trial court abused its discretion in imposing an 80-year
sentence because it failed to properly consider significant mitigating factors.
¶ 26 Butler argues that the 80-year sentence imposed by the trial court is excessive because
the court failed to consider significant mitigating factors. Specifically, Butler argues that the
trial court failed to give adequate weight to Butler’s youth, his childhood marred by violence,
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his mental health problems, and his lack of a significant criminal background. Butler
contends that 80 years amounts to a life sentence for him, and that the sentence is excessive
because it must be served in its entirety. He asserts that the sentence is also excessive
because 80 years is nearly twice the minimum sentence that could have been imposed. Butler
argues that his youth at the time of the shooting shows that he has not fully matured and has
an undeveloped sense of responsibility. Also, Butler contends that his lack of a violent
criminal history justifies a lesser sentence as his prior convictions were for drug-related
offenses. Butler points out that prior to the shooting, he was diagnosed with depression and
anxiety disorder, and while in custody he suffered a beating that caused post-concussion
syndrome. He asserts that his mental health problems also justify a lesser sentence. Further,
he points out that he endured a childhood surrounded by violence at an early age as, at the
age of four, he witnessed his mother commit murder. Butler argues that his sentence fails to
give weight to his social history.
¶ 27 Butler argues that although the offense in this case is a heinous one, that is only one
factor to consider when imposing a sentence. He contends that the legislature recognized the
seriousness of the crime in setting the minimum term for his offense at 45 years’
imprisonment. Butler argues that if he were sentenced to a term closer to 45 years, he would
still serve the vast majority of his adult life in prison. He asserts that a sentence of
approximately 45 years would offer him an incentive for rehabilitation and a possibility of
restoration to society. Thus, Butler requests that this court reduce his sentence, or in the
alternative, remand this case for a new sentencing hearing.
¶ 28 In response, the State argues that the trial court properly exercised its discretion in
sentencing Butler to 80 years’ imprisonment. Specifically, the State argues that the record
clearly indicates that the trial court considered all of the factors in aggravation and mitigation
prior to imposing the sentence. The State contends that the sentence was well within the
statutory limits provided by the legislature. The State asserts that the trial court’s sentencing
decision is entitled to great deference, and the reviewing court may not rebalance the
aggravating and mitigating factors presented to the trial court. The State argues that the trial
court is presumed to have considered all relevant factors absent a contrary showing in the
record, and in order to rebut this presumption the defendant must make an affirmative
showing that the court did not consider relevant factors. The State asserts that Butler has
pointed to nothing in the record which would indicate that the trial court did not consider
relevant factors. Additionally, the State contends that the court is not obligated to give greater
weight to a defendant’s rehabilitative potential than to the seriousness of the offense, and the
seriousness of the offense should be the most important factor considered in imposing a
sentence. The State points out that during the initial sentencing hearing, the trial court
specifically commented on each of the aggravating and mitigating factors before imposing
Butler’s sentence. The State argues that Butler’s arguments on appeal are nothing more than
a recitation of the mitigating factors presented to the trial court.
¶ 29 Further, the State argues that the sentence in this case was justified due to the nature of
the crime committed. The State contends that Butler murdered Gregory in cold blood,
without knowing whether Gregory was his intended target. The State asserts that Gregory
was an innocent victim who was unable to protect himself from Butler’s attack. The State
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argues that while Butler’s personal history is tragic, it does not justify his actions or excuse
him from punishment. Thus, the State argues that the trial court did not abuse its discretion
in sentencing Butler to 50 years’ imprisonment for the offense of first-degree murder, and
30 years’ imprisonment for the mandatory firearm sentence enhancement.
¶ 30 It is well established that the trial court has broad discretionary powers in imposing a
sentence, and the sentencing decision of the court is entitled to great deference. People v.
Stacey, 193 Ill. 2d 203, 209 (2000). The trial court is afforded great deference because it is
in a better position than the reviewing court to determine the appropriate sentence. Id. “The
trial judge has the opportunity to weigh such factors as the defendant’s credibility, demeanor,
general moral character, mentality, social environment, habits, and age.” Id. Thus, the
reviewing court cannot substitute its judgment for that of the trial court just because it would
have weighed these factors differently. Id. Absent an abuse of discretion, the sentence
imposed by the trial court may not be altered on review. Id. at 209-10. An abuse of discretion
occurs when the trial court’s decision is fanciful, arbitrary, or unreasonable to the degree that
no reasonable person would agree with it. People v. Ortega, 209 Ill. 2d 354, 359 (2004).
¶ 31 A sentence imposed by the trial court is presumed to be proper. People v. Boclair, 225
Ill. App. 3d 331, 335 (1992). “A sentence within statutory limits will not be deemed
excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly
disproportionate to the nature of the offense.” People v. Fern, 189 Ill. 2d 48, 54 (1999). “The
spirit and purpose of the law are promoted ‘when a sentence reflects the seriousness of the
offense and gives adequate consideration to the rehabilitative potential of the defendant.’
[Citation.]” (Internal quotation marks omitted.) Boclair, 225 Ill. App. 3d at 335. There is a
strong presumption that the trial court considered any evidence of mitigation presented to it.
People v. Trimble, 220 Ill. App. 3d 338, 355-56 (1991). In order to rebut this presumption,
the defendant must present some indication, other than the sentence imposed, that the trial
court did not consider the mitigating evidence. People v. Canet, 218 Ill. App. 3d 855, 864
(1991).
¶ 32 In this case, the statutory range for Butler’s sentence for first-degree murder was 20 to
60 years’ imprisonment. 730 ILCS 5/5-4.5-20(a) (West 2012). In addition, a mandatory
sentence enhancement of 25-years-to-natural-life imprisonment attached to his sentence
because the jury found that he personally discharged a firearm that proximately caused
Gregory’s death. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012). The trial court sentenced
Butler to consecutive terms of 50 years’ imprisonment for first-degree murder, and 30 years’
imprisonment for the mandatory firearm sentence enhancement, for a total of 80 years’
imprisonment. At the initial sentencing hearing held on March 13, 2009, the trial court
conducted lengthy proceedings in which it considered numerous factors in aggravation and
mitigation. The trial court heard testimony from multiple witnesses, including Phyllis, who
explained the immense emotional grief Gregory’s family has suffered and will continue to
suffer as a result of his death. Additionally, the trial court provided a very detailed
explanation of its reasoning, highlighting each aggravating and mitigating factor and
explaining that such factors were being considered in determining the length of Butler’s
sentence. Further, at the resentencing hearing held on March 14, 2012, the trial court
indicated that it had once again considered every aggravating and mitigating factor presented
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in both hearings and that it would not consider Butler’s failure to make a statement in
contrition. After careful deliberation, the trial court decided not to reduce the length of
Butler’s sentence.
¶ 33 Although we acknowledge that Butler has had an unfortunate life, we are not persuaded
by his argument that the trial court abused its discretion in imposing a sentence of 80 years’
imprisonment. This court cannot substitute its judgment for that of the trial court, and we
cannot say that the trial court’s decision was unreasonable to the degree that no reasonable
person would agree with it. As the State points out, Butler is unable to point to anything in
the record that suggests that the trial court failed to consider any of the mitigating factors he
presents. Absent a showing that the trial court failed to consider mitigating factors, the
sentence is presumed to be proper. The evidence in this case shows that Butler fired gunshots
into a vehicle containing four unsuspecting passengers, taking the life of one innocent
passenger. Butler was not aware of the identities of any of the passengers, yet he fired into
the vehicle with the intent to harm. This was a heinous crime that resulted not only in the loss
of Gregory’s life, but also impacted the lives of all his family members. While Butler’s
sentence is substantial, and we may have imposed a different sentence, that is not the criteria
by which its propriety is measured. Importantly, the sentence falls squarely within the
statutory range mandated by the legislature. Therefore, we hold that the trial court did not
abuse its discretion in imposing a sentence of 80 years’ imprisonment.
¶ 34 We next determine whether the firearm sentence enhancement statute that was applied
to Butler’s sentence is unconstitutionally vague on its face and as applied to him.
¶ 35 Butler argues that the 25-years-to-natural-life sentence enhancement that was attached
to his sentence pursuant to section 5-8-1(a)(1)(d)(iii) of the Code is unconstitutionally vague
on its face and as applied to him. Specifically, Butler argues that the statute is
unconstitutionally vague because the broad sentencing range fails to appropriately guide
judges, and encourages arbitrary and discriminatory sentencing based entirely on opinions
and whims. Butler contends that the statute does not provide objective criteria as to where
within the 25-years-to-life range a sentence should fall. Butler asserts that without statutory
criteria, the imposition of a sentence within the applicable range is entirely up to the whim
of a judge. Butler argues that the trial court should not be able to impose a sentence as
serious as natural life imprisonment without explicit guidance regarding what factors should
be considered in determining that such a sentence is merited. Butler notes that the legislature
has provided aggravating factors that generally govern the imposition of sentences. However,
Butler claims that it would be improper to use those same factors to first fashion the base
sentence within the 20- to 60-year range, and then again apply those factors to justify a
sentence enhancement of 25-years-to-life. Butler argues that because the statute does not
provide criteria for determining how to enhance a defendant’s sentence, the statute is
unconstitutionally vague. Thus, Butler claims that his sentence enhancement of 30 years’
imprisonment is void, and he requests that this court strike the sentence enhancement as
unconstitutional. Alternatively, Butler requests that this court reduce his sentence
enhancement to the statutory minimum of 25 years’ imprisonment.
¶ 36 In response, the State argues that the 25-years-to-natural-life sentence enhancement is not
unconstitutionally vague. Specifically, the State argues that the statute clearly sets forth the
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sentencing range permissible for courts in imposing the mandatory sentence enhancement.
The State contends that the statute is designed to reflect the well-established principles of
judicial discretion in sentencing. The State asserts that with every sentencing decision, there
is great discretion given to the trial court as it is recognized that the trial court is in the best
position to fashion an appropriate sentence. The State points out that Illinois courts have
recognized that the legislature enacted firearm sentence enhancements to promote public
health and safety, and to impose severe penalties that will deter the use of firearms in the
commission of felonies. The State asserts that the statute clearly states that the sentence
enhancement is mandatory, and the court has no discretion as to whether to impose the
enhancement. Also, the State argues that the statute provides clear and unambiguous
standards for its administration by sentencing courts. The State contends that the statute sets
forth the permissible sentencing range while allowing for some discretion on the part of the
trial court, so long as the sentence imposed falls within the carefully defined range. The State
claims that although the sentencing range allows for a wide scope of sentences, that does not
affect the question of whether it is sufficiently defined.
¶ 37 Further, the State argues that the 25-years-to-life sentence enhancement does provide
criteria to guide the trial court in imposing a sentence. The State contends that the statute
specifies a sliding scale of aggravating elements which must be present in order for the
likewise sliding range in sentence to be imposed. For example, the sentence enhancement
must be imposed when a defendant uses a firearm to cause injuries ranging from great bodily
harm, permanent disability, permanent disfigurement, or death. 730 ILCS 5/5-8-
1(a)(1)(d)(iii) (West 2012). Thus, the State argues that logically it follows that the low range
of the 25-years-to-life sentence enhancement addresses the situations with lesser harm or
injury, while the higher range of the sentence enhancement is designed for the most serious
situations such as where a death occurred. Lastly, the State argues that Illinois courts have
rejected Butler’s argument that the statute improperly allows a court to use aggravating
factors to first fashion the base sentence within the 20- to 60-year range, and then again apply
those factors to justify a sentence enhancement of 25-years-to-life. Thus, the State argues that
the 25-years-to-life sentence enhancement is not unconstitutionally vague.
¶ 38 The 25-years-to-life firearm sentence enhancement states, in pertinent part:
“(a) Except as otherwise provided in the statute defining the offense or in Article 4.5
of Chapter V, 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,
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[(d)](iii) if, during the commission of the offense, the person personally
discharged a firearm that proximately caused great bodily harm, permanent
disability, permanent disfigurement, or death to another person, 25 years or up
to a term of natural life shall be added to the term of imprisonment imposed by
the court.” 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012).
¶ 39 In Illinois, “[a]ll statutes are presumed to be constitutional, and the burden of rebutting
that presumption is on the party challenging the validity of the statute to demonstrate clearly
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a constitutional violation.” People v. Greco, 204 Ill. 2d 400, 406 (2003). A statute must be
construed so as to affirm its constitutionality, if reasonably possible. Id. We review the
constitutionality of a statute under the de novo standard of review. Id. at 407.
¶ 40 The Illinois Constitution prescribes that “[n]o person shall be deprived of life, liberty or
property without due process of law nor be denied equal protection of the laws.” Ill. Const.
1970, art. I, § 2. When a party challenges the constitutionality of a statute based on
vagueness, it is a due process challenge examining whether the statute gives an ordinarily
intelligent person the reasonable opportunity to know what is prohibited, so that he may act
accordingly. Greco, 204 Ill. 2d at 415-16. “A statute is unconstitutionally vague if the terms
are so ill-defined that the ultimate decision as to its meaning rests on the opinions and whims
of the trier of fact rather than any objective criteria or facts.” People v. Pembrock, 62 Ill. 2d
317, 322 (1976). When considering a vagueness challenge to a statute, the court considers
many factors, including the language used, the legislative objective, and the evil the statute
is designed to remedy. Greco, 204 Ill. 2d at 416. In the context of a vagueness challenge, the
court applies a two-prong test and will determine that due process is satisfied if: “(1) the
statute’s prohibitions are sufficiently definite, when measured by common understanding and
practices, to give a person of ordinary intelligence fair warning as to what conduct is
prohibited, and (2) the statute provides sufficiently definite standards for law enforcement
officers and triers of fact that its application does not depend merely on their private
conceptions.” Id.
¶ 41 In this case, Butler argues that the 25-years-to-life sentence enhancement only violates
the second prong of the due process test in that it does not provide sufficiently definite
standards for its application by triers of fact. We disagree. Although the sentence
enhancement allows for a wide range of sentences, the scope of the sentencing range is clear
and definite. When the enhancement is triggered, it must be applied for no less than 25 years
and up to a term of natural life. The trial court has no discretion to decide whether or not to
impose the sentence enhancement. Likewise, the standards for imposing the sentence
enhancement are clearly defined. The sentence enhancement must be imposed when a
defendant commits first-degree murder and discharges a firearm that proximately causes
great bodily harm, permanent disability, permanent disfigurement, or death. Depending on
the injury caused by the firearm used by the defendant, the trial court has discretion to
impose a sentence in the range of 25-years-to-life. This allows the trial court to engage in
fact-based determinations based on the unique circumstances of each case. The wide range
of the sentence enhancement is appropriate because it is impossible to predict every type of
situation that may fall under the purview of the statute. By defining the types of injuries that
trigger the sentence enhancement, the legislature has provided the trier of fact with guidelines
to apply when determining what sentence to impose within the boundaries of the statute.
Therefore, the scope and standards of the 25-years-to-life sentence enhancement are not
vague.
¶ 42 Butler argues that the injury standards (great bodily harm, permanent disability,
permanent disfigurement, or death) do not provide the trial court with any guidance because
all defendants who are guilty of first-degree murder will have caused a death. Thus, Butler
argues that once the 25-years-to-life enhancement is triggered by the firearm having caused
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the death, there are no standards to guide the decision of what sentence to impose. However,
Butler’s argument is flawed because he fails to contemplate situations in which the firearm
is not the proximate cause of the victim’s death. For example, there are countless conceivable
situations where, during the commission of the offense of first-degree murder, a defendant
could discharge a firearm that causes an injury, but then also completes some other action
that causes the death of the victim. Such a situation would be wholly distinguishable from
the case at bar in which the firearm used by Butler caused Gregory’s death. In both cases the
sentence enhancement would apply, but the trial court could impose a different sentence
within the statutory range for each situation. We acknowledge Butler’s concern that the 25-
years-to-life sentence enhancement lacks detailed instruction as to where a trial court’s
sentence should fall within the broad range of the statute. Although confusion could be
avoided if the legislature provided more explicit guidance regarding the imposition of the 25-
years-to-life sentence enhancement, we cannot say that it is unconstitutionally vague. Thus,
while Butler’s argument has some reasonable elements, we are not persuaded by it for the
reasons discussed.
¶ 43 Further, as the State points out, Butler’s argument that the 25-years-to-life sentence
enhancement statute allows for “double enhancement” has been rejected by our supreme
court. See People v. Sharpe, 216 Ill. 2d 481 (2005). In Sharpe, the supreme court held:
“[T]he general rule against double enhancement is merely a rule of construction
established by this court, which arises from the presumption that the legislature
considered the factors inherent in the offense in setting the initial penalty for that offense.
[Citation.] But where the legislature has made clear an intention to enhance the penalty
for a crime, even in a way which might constitute double-enhancement, this court will
not overrule the legislature.” Id. at 530.
Thus, Butler’s argument fails. Accordingly, we hold that the 25-years-to-life sentence
enhancement is not unconstitutionally vague.
¶ 44 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 45 Affirmed.
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