People v. Taylor ( 2023 )

2023 IL 128316IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 128316)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
SHAUN N. TAYLOR, Appellant.
Opinion filed May 18, 2023.
JUSTICE ROCHFORD delivered the judgment of the court, with opinion.
Chief Justice Theis and Justices Neville, Overstreet, Holder White,
Cunningham, and O’Brien concurred in the judgment and opinion.
OPINION
¶1 Defendant Shaun N. Taylor was convicted of attempted first degree murder of
a peace officer and was sentenced to 30 years’ imprisonment, plus an additional 20
years’ imprisonment for using a firearm during the commission of the offense. The
Appellate Court, Third District, affirmed defendant’s conviction and sentence.
2022 IL App (3d) 190281. This court allowed defendant’s petition for leave to
appeal. Ill. S. Ct. R. 315 (eff. Oct. 1, 2021). For the following reasons, we affirm
the appellate court’s judgment.
¶2 FACTS
¶3 On October 15, 2017, Illinois State Trooper Andrew Scott stopped defendant
on Interstate 80 due to an obstructed windshield. Scott approached defendant’s
vehicle, identified himself as an Illinois State Trooper, and informed defendant that
he was going to give him a warning. While Scott was preparing the warning,
another officer arrived with a canine unit. That officer walked the canine around
defendant’s vehicle, and the canine alerted. Scott and the other officer asked
defendant to exit his car. Defendant refused and sped off.
¶4 Defendant exited the interstate at the first available exit and ultimately parked
his vehicle on a country road. Defendant then grabbed two weapons that he was
carrying in his vehicle, an AR-15, semiautomatic rifle and a .40-caliber handgun.
Defendant took up a hidden position in a cornfield directly across from his vehicle.
Scott found defendant’s vehicle shortly thereafter but did not approach the vehicle
because he could see the vehicle was not occupied. Scott parked his squad car
approximately 60 yards from defendant’s vehicle, with the front of his squad car
facing the front of defendant’s vehicle. Scott exited his squad car and moved to a
spot behind it. Defendant then fired 23 shots in Scott’s direction with the AR-15
rifle. Scott was unharmed. Law enforcement officers then pursued defendant, who
surrendered several hours later.
¶5 Defendant was charged with one count of attempted first degree murder of a
peace officer in the course of performing his official duties (720 ILCS 5/8-4(a), 9-
1(a)(1) (West 2016)) and one count of aggravated discharge of a firearm (id. § 24-
1.2(a)(3)). Prior to defendant’s trial, the trial court appointed Dr. Kirk Witherspoon,
a clinical psychologist, to examine defendant. Dr. Witherspoon examined
defendant on two occasions to determine whether defendant could raise the defense
of not guilty by reason of insanity, defendant could raise the mitigation of guilty
but mentally ill, and defendant was fit to stand trial.
¶6 Dr. Witherspoon’s diagnosis of defendant was that defendant suffered from
posttraumatic stress disorder. Dr. Witherspoon found defendant to be fit to stand
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trial and further found that defendant did not meet the criteria for a defense of not
guilty by reason of insanity. However, Dr. Witherspoon opined that if defendant
was convicted, the presumption of guilty but mentally ill seemed applicable. Dr.
Witherspoon also filed an addendum to his psychological evaluations. The
addendum was based upon Dr. Witherspoon’s review of records that defense
counsel was able to obtain from a 2007 psychiatric hospitalization of defendant. Dr.
Witherspoon’s addendum stated that the data associated with defendant’s 2007
brief hospitalization did not appear significant or sufficient to alter Dr.
Witherspoon’s recommendations that defendant was not eligible for a not guilty by
reason of insanity plea but that the court could consider a guilty but mentally ill
finding if defendant was found guilty.
¶7 Dr. Witherspoon also sent defense counsel a handwritten note stating:
“Mr. Taylor’s is a borderline case. I do not think he meets the threshold of [not
guilty by reason of insanity]. However, if his parents can afford it, you may
wish to seek a second opinion. If so, I can give you the names of a couple of
other good psychologists who can do this work.”
¶8 Defendant then filed a motion requesting the appointment of another expert, at
the State’s expense, to render a second opinion concerning whether defendant could
raise a not guilty by reason of insanity defense. In support of his request, defendant
referenced Dr. Witherspoon’s handwritten note to defense counsel. The trial court
denied defendant’s motion, noting that, in his report, Dr. Witherspoon did not limit
or qualify his opinion in any way. The trial court also noted that he had seen Dr.
Witherspoon make recommendations to the court on previous occasions
recommending that the court appoint another expert. Further, the handwritten note
did not recommend that the court appoint another expert. Rather, the note simply
stated that, if defendant wanted to spend the money, he could talk to someone else.
The trial court held that defendant did not show the need for the appointment of a
second expert at public expense.
¶9 Defense counsel then asked the court if it would be willing to entertain a
renewed motion if counsel could secure a firmer recommendation from Dr.
Witherspoon. The trial court agreed that, if Dr. Witherspoon filed another
addendum to his report, the court would consider that addendum. Further, in the
event defense counsel was able to secure a firmer recommendation from Dr.
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Witherspoon, the trial court told defense counsel that he could set the matter for
hearing and call Dr. Witherspoon to testify. No further recommendations or
evaluations from Dr. Witherspoon were filed.
¶ 10 Defendant’s case then proceeded to a jury trial, where defendant was found
guilty of both charges. Because defendant was charged and convicted of attempted
first degree murder of a peace officer in the course of performing his official duties,
defendant was subject to a sentence between 20 and 80 years’ imprisonment (id.
§ 8-4(c)(1)(A)), rather than the sentencing range of 6 to 30 years’ imprisonment for
attempt to commit first degree murder (id. § 8-4(c)(1); 730 ILCS 5/5-4.5-25 (West
2016)).
¶ 11 At defendant’s sentencing hearing, the trial court asked the parties whether the
20-year firearm sentencing enhancement in section 8-4(c)(1)(C) of the Criminal
Code of 2012 (Code) (720 ILCS 5/8-4(c)(1)(C) (West 2016)) applied to defendant’s
case, given that defendant also was subject to the higher sentencing range for the
attempted murder of a peace officer set forth in section 8-4(c)(1)(A). The State
argued that the firearm sentencing enhancement applied, while defendant argued
that the firearm sentencing enhancement would constitute an improper double
enhancement.
¶ 12 Citing People v. Tolentino, 409 Ill. App. 3d 598 (2011), and People v. Jackson,
2018 IL App (1st) 150487, the trial court found that the 20-year firearm
enhancement did apply. Accordingly, the trial court sentenced defendant to 30
years’ imprisonment for the attempted murder of a peace officer in the course of
performing his official duties, plus an additional 20 years for discharging a firearm
in the attempted murder, for a total of 50 years’ imprisonment. The trial court then
merged the aggravated discharge of a firearm conviction into the attempted murder
conviction.
¶ 13 Defendant filed a motion to reconsider sentence, again arguing that imposition
of the firearm enhancement constituted an improper double enhancement. At a
hearing on defendant’s motion, the trial court noted a conflict in the appellate court
over whether imposition of a firearm enhancement to a defendant subject to an
enhanced status-based sentence under subsection (A) constituted an improper
double enhancement. The trial court agreed with the cases finding the firearm
enhancement addressed different policy concerns than the subsection (A) status-
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based sentence, so that the firearm enhancement in this case did not constitute an
improper double enhancement. The trial court therefore denied defendant’s motion
to reconsider sentence.
¶ 14 Defendant appealed, arguing that the trial court abused its discretion in denying
his request for appointment of a second expert to determine whether defendant was
eligible for a finding of not guilty by reason of insanity. Defendant also argued that
the trial court’s imposition of the 20-year firearm enhancement constituted an
improper double enhancement, because the trial court also imposed a status-based
sentence for the attempted murder of a peace officer in the course of performing his
official duties.
¶ 15 The appellate court affirmed (2022 IL App (3d) 190281, ¶ 42) with one justice
dissenting on the issue of double enhancement (id. ¶ 45 (Lytton, J., concurring in
part and dissenting in part)). The appellate court first unanimously held that the trial
court did not abuse its discretion in denying defendant’s request for a second expert
to determine whether defendant was insane at the time of the offense. Id. ¶ 21
(majority opinion); id. ¶ 45 (Lytton, J., concurring in part and dissenting in part).
The appellate court noted that the United States Supreme Court in Ake v. Oklahoma,
470 U.S. 68, 83 (1985), established that,
“ ‘when a defendant demonstrates to the trial judge that his sanity at the time of
the offense is to be a significant factor at trial, the State must, at a minimum,
assure the defendant access to a competent psychiatrist who will conduct an
appropriate examination and assist in evaluation, preparation, and presentation
of the defense.’ ” 2022 IL App (3d) 190281, ¶ 42 (majority opinion) (quoting
Ake, 470 U.S. at 83).
The appellate court also stated that a defendant’s right to a psychiatric exam is
protected by section 115-6 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115-6 (West 2016)).
¶ 16 The appellate court found that the requirements of Ake had been met in this
case. Because defendant was indigent and his sanity was to be a significant issue at
trial, the State was required to, and did, provide defendant with access to a
psychiatric evaluation. The trial court appointed Dr. Witherspoon at the State’s
expense to determine whether defendant was sane at the time he committed the
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offense. Dr. Witherspoon conducted a thorough evaluation of defendant’s mental
condition and determined that defendant was not insane when he fired on Officer
Scott. The appellate court concluded that the appointment of Dr. Witherspoon and
his evaluation of defendant fulfilled the requirements of Ake. 2022 IL App (3d)
190281, ¶ 19.
¶ 17 The appellate court rejected defendant’s claim that he was entitled to a second
evaluation based upon Dr. Witherspoon’s handwritten note to defense counsel,
which described defendant’s case as “ ‘borderline.’ ” Id. ¶ 21. The appellate court
stated that, given the information submitted by Dr. Witherspoon after examining
defendant, there was no substantial value in ordering a second evaluation. Id. The
appellate court found no abuse of discretion in the trial court’s failure to approve
funds for a second psychiatric evaluation. Id.
¶ 18 The appellate court next addressed defendant’s claim that the trial court erred
in applying both the status-based sentence under section 8-4(c)(1)(A) of the Code
and the 20-year firearm enhancement under section 8-4(c)(1)(C) of the Code. Id.
¶ 23. Defendant argued that, once the trial court applied the status-based sentencing
range in subsection (A), application of other subsections of the attempted first
degree murder statute would constitute an improper double enhancement. Id.
Defendant noted the split of authority on the issue and argued that the court should
follow the case law finding that a court cannot impose a firearm enhancement once
a status-based sentence is imposed. Id. ¶ 24.
¶ 19 The statute at issue provides:
Ҥ 8-4. Attempt.
(a) Elements of the offense.
A person commits the offense of attempt when, with intent to commit a
specific offense, he or she does any act that constitutes a substantial step toward
the commission of that offense.
***
(c) Sentence
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A person convicted of attempt may be fined or imprisoned or both not to
exceed the maximum provided for the offense attempted but, except for an
attempt to commit the offense defined in Section 33A-2 of this Code:
(1) the sentence for attempt to commit first degree murder is the
sentence for a Class X felony, except that
(A) an attempt to commit first degree murder when at least one of
the aggravating factors specified in paragraphs (1), (2), and (12) of
subsection (b) of Section 9-1 is present is a Class X felony for which the
sentence shall be a term of imprisonment of not less than 20 years and
not more than 80 years;
(B) an attempt to commit first degree murder while armed with a
firearm is a Class X felony for which 15 years shall be added to the term
of imprisonment imposed by the court;
(C) an attempt to commit first degree murder during which the
person personally discharged a firearm is a Class X felony for which 20
years shall be added to the term of imprisonment imposed by the court;
(D) an attempt to commit first degree murder during which the
person personally discharged a firearm that proximately caused great
bodily harm, permanent disability, permanent disfigurement, or death to
another person is a Class X felony for which 25 years or up to a term of
natural life shall be added to the term of imprisonment imposed by the
court; and
(E) if the defendant proves by a preponderance of the evidence at
sentencing that, at the time of the attempted murder, he or she was acting
under a sudden and intense passion resulting from serious provocation
by the individual whom the defendant endeavored to kill, or another,
and, had the individual the defendant endeavored to kill died, the
defendant would have negligently or accidentally caused that death,
then the sentence for the attempted murder is the sentence for a Class 1
felony[.]” 720 ILCS 5/8-4 (West 2016)).
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¶ 20 Defendant’s sentence falls under subsection (A) because the aggravating factor
specified in section 9-1(b)(1) of the Code (id. § 9-1(b)(1)) was present. Section 9-
1(b)(1) provides that an aggravating factor in the homicide statute is when
“(1) the murdered individual was a peace officer or fireman killed in the
course of performing his official duties, to prevent the performance of his
official duties, or in retaliation for performing his official duties, and the
defendant knew or should have known that the murdered individual was a peace
officer or fireman.” Id.
¶ 21 The appellate court noted the split of authority on the issue of double
enhancement. 2022 IL App (3d) 190281, ¶ 24. One line of case law found that
section 8-4(c) should be read disjunctively, precluding application of the firearm
enhancement to a status-based sentence under subsection (A). Id. ¶ 29. The other
line of cases found that the 20- to 80-year sentence set forth in subsection (A) was
a baseline sentence, not an enhancement, so that application of the firearm
enhancement to the status-based sentence was not an improper double
enhancement. Id. ¶ 33.
¶ 22 The appellate court agreed with the cases holding that subsection (A) was a
baseline sentence in cases involving status-based offenses, such as the attempted
murder of Officer Scott in this case, so that subsections (B), (C), or (D) also applied
when a firearm was used in that offense. Id. ¶ 39. The appellate court therefore
found no error in the defendant’s sentence.
¶ 23 The partial dissent disagreed with this portion of the appellate court’s analysis.
Id. ¶ 45 (Lytton, J., concurring in part and dissenting in part). The dissent believed
that the semicolons between the subsections of section 8-4(c) indicated that each
exception must be read disjunctively. Id. ¶ 50. The dissent found support for his
analysis in the analysis of the courts in People v. Phagan, 2019 IL App (1st)
153031, and People v. Holley, 2019 IL App (1st) 161326. 2022 IL App (3d)
190281, ¶ 56. The dissent would vacate defendant’s 20-year firearm enhancement
and would remand the cause for resentencing. Id. ¶ 60.
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¶ 24 ANALYSIS
¶ 25 In this court, defendant again challenges the trial court’s denial of his request
for a second expert witness, as well as the imposition of the 20-year firearm
sentencing enhancement.
¶ 26 A. Expert Witness
¶ 27 This court reviews a trial court’s denial of a motion for expert witness for an
abuse of discretion. See People v. Page, 193 Ill. 2d 120, 153 (2000); People v.
Lawson, 163 Ill. 2d 187, 230 (1994).
¶ 28 Defendant argues that the trial court abused its discretion in denying his request
for a second psychiatric evaluation to determine whether he was not guilty by
reason of insanity. Defendant argues that a second evaluation was necessary based
upon Dr. Witherspoon’s handwritten note to defense counsel stating that
defendant’s case was borderline. Citing McWilliams v. Dunn, 582 U.S. 183 (2017),
defendant argues that Ake requires not only an appropriate examination but also for
the State to provide the defense with access to a competent psychiatrist who will
also assist in the evaluation, preparation, and presentation of the defense.
¶ 29 Defendant asserts that, even if Dr. Witherspoon conducted an appropriate
examination, Dr. Witherspoon could not have helped the defense evaluate, prepare,
and present a defense, because Dr. Witherspoon’s note that defendant’s case was a
borderline case rendered Dr. Witherspoon’s opinion uncertain, necessitating the
appointment of a second expert.
¶ 30 The State responds that defendant’s constitutional rights were satisfied by the
appointment of Dr. Witherspoon. We agree with the State. Ake held that a defendant
is entitled to access to a competent psychiatrist when the defendant’s sanity at the
time of the offense is to be a significant factor at trial. Ake, 470 U.S. at 83. Access
to a competent psychiatrist means that the psychiatrist will conduct an appropriate
examination and will assist in the evaluation, preparation, and presentation of the
defense. Id. Ake clarified that this did not mean an indigent defendant “has a
constitutional right to choose a psychiatrist of his personal liking or to receive funds
to hire his own.” Id.-9-
¶ 31 Defendant does not argue that Dr. Witherspoon did not conduct an appropriate
examination. Dr. Witherspoon conducted two psychological evaluations of
defendant, and both times he opined that defendant did not meet the criteria for a
defense of not guilty by reason of insanity. Dr. Witherspoon did believe that, if
defendant was convicted, the guilty but mentally ill presumption could apply. Dr.
Witherspoon also prepared an addendum to his psychological evaluation, after
reviewing additional records obtained from a brief psychiatric hospitalization of
defendant in 2007. The addendum stated that “[d]ata associated with [defendant’s]
prior brief hospitalization did not appear significant or sufficient enough to alter
those recommendations previously shared.”
¶ 32 Relying on McWilliams, defendant claims that he was entitled to the
appointment of a second expert because Dr. Witherspoon did not assist in the
evaluation, preparation, and presentation of the defense.
¶ 33 Defendant’s reliance on McWilliams is misplaced. In McWilliams, the
defendant was found competent to stand trial by a three-member panel of
psychiatrists comprising the state of Alabama’s “Lunacy Commission.”
McWilliams, 582 U.S. at 188. The defendant was convicted of capital murder, and
the jury recommended the death penalty. Id. at 189. The case was then set for a
judicial sentencing hearing. Id.
¶ 34 Five weeks before the sentencing hearing, defense counsel subpoenaed mental
health records from the defendant’s prison and filed a motion for neurological and
neuropsychological testing of the defendant. Id. at 190. Dr. Goff, a
neuropsychologist, was retained to examine the defendant. Dr. Goff filed his report
two days before the defendant’s sentencing hearing. Id. The day before the
defendant’s sentencing hearing, defense counsel received updated records from the
state hospital, and on the morning of the hearing, defense counsel received
subpoenaed records from the prison. Id. at 190-91.
¶ 35 At the defendant’s sentencing hearing, defense counsel told the court that the
late arrival of Dr. Goff’s report and the records left him unable to present evidence
that day and that he needed to have someone review the documents and offer a
second opinion. Id. at 191. Defense counsel noted his own lack of expertise to
review the records or to determine whether and how to challenge the reports and
tests run by the state hospital and Lunacy Commission. Id. at 192. The trial court
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denied defense counsel’s motion, and the defendant ultimately was sentenced to
death. Id. at 192-93. The Alabama reviewing courts rejected the defendant’s claim
that the state of Alabama had failed to provide him with his constitutionally
required expert mental health assistance. Id. at 193-94.
¶ 36 The United States Supreme Court found that the defendant had been denied the
mental health assistance required by Ake. Id. at 199. The Court assumed that the
defendant had received the examination portion of Ake’s requirements when Dr.
Goff examined the defendant. Id. However, Ake’s requirement that the defendant
receive access to an expert who will assist in the evaluation, preparation, and
presentation of the defense was not met. No expert helped the defense evaluate Dr.
Goff’s report, evaluate the defendant’s extensive medical records, or translate that
data into a legal strategy. No expert helped the defense prepare and present
arguments to explain the defendant’s alleged malingering or prepare for the direct
or cross-examination of any witnesses. Id. The court concluded that the state of
Alabama’s provision of mental health assistance fell dramatically short of Ake’s
requirements and therefore remanded the matter to the Eleventh Circuit Court of
Appeals. Id. at 200.
¶ 37 Defendant claims that in this case, as in McWilliams, the need for a second
opinion arose because in both cases the indigent defendants were entitled to obtain
additional experts. According to defendant, the issue of sanity remained a
significant issue in both his case and McWilliams after the initial expert expressed
an uncertain or inconclusive opinion that the defendant was sane. The inconclusive
opinions left each expert unable to effectively assist in the preparation and
presentation of a plausible insanity defense. Defendant argues that, even if Dr.
Witherspoon conducted an appropriate examination, Dr. Witherspoon could not
have helped defendant evaluate, prepare, and present a defense, given his
uncertainty concerning whether defendant was insane at the time he committed the
offense.
¶ 38 We disagree with defendant’s characterization of Dr. Witherspoon’s opinion.
Dr. Witherspoon conducted two evaluations of defendant, reviewed additional
medical records, and consistently opined that defendant was not eligible for a not
guilty by reason of insanity defense. Neither of Dr. Witherspoon’s written
evaluations indicated any equivocation concerning defendant’s sanity for purposes
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of trial, nor did his addendum. Even Dr. Witherspoon’s note to defense counsel was
unequivocal. Although the note stated that counsel might want to seek a second
opinion if defendant’s parents could afford it, Dr. Witherspoon also wrote, “I do
not think he meets the threshold of [not guilty by reason of insanity].” (Emphasis
added.) Nowhere in the record is there evidence that Dr. Witherspoon was uncertain
about his conclusion that defendant was sane.
¶ 39 This case is distinguishable from McWilliams. In McWilliams, defense counsel
received Dr. Goff’s report and the defendant’s medical records just prior to the
defendant’s sentencing hearing. Id. at 190-91. The trial court refused to continue
the hearing to allow defense counsel additional time to review the materials for the
hearing. Id. at 191-92. The sentencing hearing proceeded, and in response to the
state of Alabama’s argument that there were no mitigating circumstances, defense
counsel stated that he could not respond to that remark because he was not a doctor
and could not go through the medical records on his own. Id. at 192-93. The trial
court then sentenced the defendant to death, finding no mitigating circumstances.
Id. at 193. Under those circumstances, the Court found that the defendant was
denied access to a competent psychiatrist who would assist in evaluation,
preparation, and presentation of a defense, as required under Ake. Id. at 199.
¶ 40 Those circumstances are not present in this case. Defendant does not and cannot
claim that he did not have assistance in reviewing defendant’s medical records or
in translating those records into a legal strategy. Dr. Witherspoon did help
defendant evaluate, prepare, and present a defense. Dr. Witherspoon examined
defendant on two occasions and reviewed defendant’s medical records. Although
Dr. Witherspoon did not find that defendant was not guilty by reason of insanity,
Dr. Witherspoon suggested that defendant could be found guilty but mentally ill if
he was convicted. This may not have been defendant’s preferred defense, but
defendant cannot say that Dr. Witherspoon did not help him evaluate, prepare, and
present a defense.
¶ 41 Defendant also claims the appellate court erred in relying on section 115-6 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-6 (West 2016)) to affirm
the denial of defendant’s motion for the appointment of a second expert. We need
not address this claim, as the basis for the appellate court’s ruling was its analysis
of the requirements set forth in Ake. See 2022 IL App (3d) 190281, ¶¶ 17-20. The
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appellate court simply noted that, in Illinois, a defendant’s right of access to a
psychiatric examination is protected by statute as well, citing section 115-6. Id.
¶ 18.
¶ 42 Accordingly, we find that Dr. Witherspoon’s examinations and evaluations of
defendant fulfilled the standards set forth in Ake. The trial court did not abuse its
discretion in denying defendant’s request for a second expert to examine defendant.
¶ 43 B. Firearm Enhancement
¶ 44 Defendant next argues that his sentence should be vacated and the cause
remanded for resentencing because his sentence constituted an improper double
enhancement. Defendant argues that the dissent in this case is better reasoned and
that the split in the appellate court should be resolved in favor of the cases finding
that the status-based sentence in subsection (A) is a sentencing enhancement and
that all the sentencing enhancements in section (c)(1) apply disjunctively.
¶ 45 When reviewing issues of statutory construction, this court’s review is de novo.
People v. Kastman, 2022 IL 127681, ¶ 29. A court’s fundamental objective in
addressing issues of statutory construction is to ascertain and give effect to the
legislature’s intent. People v. Newton, 2018 IL 122958, ¶ 14. In determining the
legislature’s intent, a court “may consider the reason and necessity for the law, the
evils it was intended to remedy, and its ultimate aims.” People v. Pullen, 192 Ill.
2d 36, 42 (2000). In addition, we presume that, in enacting the statute, the
legislature did not intend to produce absurd, inconvenient, or unjust results. In re
Estate of Wilson, 238 Ill. 2d 519, 560 (2010).
¶ 46 With these principles in mind, we turn to the statute at issue. The first case to
address the interplay of the status-based enhanced sentence in section 8-4(c)(1)(A)
and the firearm enhancements in section 8-4(c)(1)(B), (C), and (D) was People v.
Douglas, 371 Ill. App. 3d 21 (2007). In that case, the court considered whether the
trial court was required to impose the 20-year firearm enhancement in addition to
the defendant’s 35-year sentence for the attempted murder of a peace officer
engaged in the course of performing his official duties. Id. at 23. In considering the
sentencing issue, the Appellate Court, First District, first found that subsection (A)
was not a sentencing enhancement but, rather, was a baseline sentence. Id. at 26.
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The court stated that the sentencing enhancements were contained in subsections
(B), (C), and (D) of the statute. The court declined to impose the 20-year sentencing
enhancement, however, finding that in creating the subsection (A) Class X offense
carrying a 20- to 80-year sentence, “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,” because Class X offenses
ordinarily carry a sentence of 6 to 30 years. Id.
¶ 47 The Appellate Court, First District, next addressed the issue in People v.
Tolentino, 409 Ill. App. 3d 598 (2011). The defendant in that case was sentenced
to 20 years’ imprisonment for the attempted murder of a peace officer under
subsection (A), along with a 20-year firearm enhancement under subsection (C).
Id. at 599. Citing Douglas, the defendant argued on appeal that the plain,
unambiguous statutory language prohibited application of the firearm enhancement
to his attempted first degree murder of a peace officer conviction. Id. at 605.
¶ 48 The Tolentino court agreed with Douglas that subsection (A) contained no
sentencing enhancements and that the sentencing enhancements were contained in
subsections (B), (C), and (D). Id. at 606. The court, however, disagreed with the
Douglas court’s statement that the legislature “ ‘might have believed’ ” subsection
(A) presented a built-in enhancement without the need for further provision.
Tolentino found that portion of the Douglas opinion to be speculative dicta and
declined to follow it. Id. (quoting Douglas, 371 Ill. App. 3d at 26). The court found
that the statute did not expressly prohibit use of the firearm enhancements when
sentencing under subsection (A). Id. The court agreed with the State that the public
policy concerns underlying subsection (A) differed from the concerns underlying
the firearm enhancement provisions. Id. The court stated that
“[a]llowing a trial court to add a firearm enhancement to a sentence given
pursuant to subsection (A) would address the legislature’s desire both to deter
intentional killings of peace officers and to discourage the use of firearms in the
commission of felonies.” Id.
Therefore, the trial court did not err in applying the firearm enhancement to the
defendant’s sentence under subsection (A). Id.
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¶ 49 The Appellate Court, First District, reaffirmed this construction of the statute in
People v. Smith, 2012 IL App (1st) 102354, and Jackson, 2018 IL App (1st)
150487. Smith also found that the Douglas analysis was not persuasive, finding
that, just as the firearm sentencing enhancements in subsections (B), (C), and (D)
must be added to the 6- to 30-year sentencing range, they must also be added to the
higher 20- to 80-year sentencing range. Smith, 2012 IL App (1st) 102354, ¶ 114.
Smith noted that
“a defendant may attempt to murder a police officer by many means other than
a firearm, and where subsection (c)(1)(A) makes no reference to firearms, the
court should not speculate that any concerns about the use of firearms in
perpetrating this offense have already been considered by the legislature and
are accounted for by the 20- to 80-year sentencing range.” Id.¶ 50 The Jackson court also disagreed with the Douglas court’s reasoning. Jackson,
2018 IL App (1st) 150487, ¶ 54. Jackson stated that the most natural reading of
subsection (A) was that it set out an enhanced baseline sentence for the attempted
murder of a peace officer and that subsections (B), (C), or (D) could apply based
upon the facts of the case. Id. ¶ 52. The court acknowledged the legislature’s use of
a semicolon to punctuate subsection (A) and noted that semicolons typically
precede a related but separate concept. Id. ¶ 51. The semicolons suggested that the
subsections in section (c)(1) must be read disjunctively. Id. Nonetheless, the
Jackson court believed that the legislature did not use semicolons to signify a
disjunctive intent. Id.
¶ 51 Jackson also noted that a 2010 amendment to the statute added subsection (E),
changing the period at the end of subsection (D) into a semicolon and adding the
word “and” before the text of subsection (E). Id. The court therefore concluded that
the use of the word “and” at the end of the series of subsections, each ending in a
semicolon, signaled that the legislature intended for the exceptions in subsection
(c)(1) to apply conjunctively, not disjunctively. Id.
¶ 52 When faced with the issue again in 2019, the Appellate Court, First District,
disagreed with Tolentino, Smith, and Jackson. Phagan, 2019 IL App (1st) 153031.
Phagan noted that the courts in Douglas, Tolentino, and Smith addressed the
version of the statute prior to the statute’s 2010 amendment. Id. ¶ 84. Further,
although the Jackson court addressed the amended statute, containing subsection
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(E), the Phagan court disagreed with Jackson’s analysis. Id. Phagan noted that
subsections (A) and (E), the two exceptions to the base Class X sentencing range
for attempted first degree murder, could not exist together. Id. ¶ 99. If a defendant
attempted the aggravated form of first degree murder, he could not have attempted
first degree murder plus a mitigating circumstance. Id. For that reason, the Jackson
court erred in reading subsections (A) and (E) conjunctively. Id. ¶ 100.
¶ 53 Phagan also found an additional absurdity in reading the subsections of section
(c)(1) conjunctively, stating that a conjunctive reading would allow trial courts to
impose the 15-year, 20-year, and 25-year to natural life firearm enhancements on
top of one another, thus sanctioning improper multiple enhancements. Id. ¶ 101.
Phagan therefore held that the attempted first degree murder statute did not allow
for the imposition of a 20-year firearm enhancement on top of the imposition of the
extended sentencing range set forth in subsection (A). Id. ¶ 107.
¶ 54 Another panel of the Appellate Court, First District, similarly departed from the
Tolentino, Smith, and Jackson decisions and held that the trial court had erred in
applying the 25-year to natural life sentencing enhancement in subsection (D) to
the defendant’s subsection (A) sentence for the attempted murders of two peace
officers. Holley, 2019 IL App (1st) 161326. The court found that the statute set
forth a sentence for attempted murder, a Class X offense, with a baseline sentence
of 6 to 30 years’ imprisonment. Id. ¶ 32. That baseline sentence was subject to
modification in one of the five ways set forth in subsections (A) through (E). Id.
Holley stated that nothing in the structure of the statute or the statutory language
suggested that the sentencing court was to apply more than one of those exceptions
in a particular case. Id. Further, to the extent the statute was ambiguous, any
ambiguity would be construed in favor of the defendant pursuant to the rule of
lenity. Id.
¶ 55 The instant decision is the first case outside of the Appellate Court, First
District, to address the issue of whether the firearm sentencing enhancements could
be applied to a sentence imposed under subsection (A). As discussed, the appellate
court in this case disagreed with the reasoning of the Phagan and Holley courts and
found that subsection (A) was a base sentencing range for a status-based offense,
rather than an enhancement, so that a trial court was not prohibited from also
imposing a firearm enhancement to that sentence. We further note that, following
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the appellate court’s decision in this case, the First District again addressed the issue
and disagreed with the Phagan and Holley decisions. People v. Pledger, 2022 IL
App (1st) 200094-U. The Pledger court analyzed the statute and reached the same
conclusion as the appellate court in this case, that subsection (A) created a baseline
sentence, which was subject to modification in one of four ways set forth in
subsections (B) through (E). Id. ¶ 31.
¶ 56 Noting the conflict in the appellate court, defendant argues that this court should
resolve that conflict in favor of the decisions finding that the sentence
enhancements apply disjunctively rather than conjunctively, so that defendant’s
sentence should be vacated and the cause remanded for resentencing. Following the
reasoning of those courts, defendant argues that the subsections in section 8-4(c)(1)
apply disjunctively because (1) the plain language of the attempt statute shows that
each sentence enhancement is an exception, with its own sentencing scheme, to the
baseline Class X sentencing range of 6 to 30 years for attempted murder, (2) each
sentence enhancement is a distinct and aggravated crime under the plain language
of the statute and the United States Supreme Court’s decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and (3) the legislature’s use of semicolons to separate
the subsections indicates the subsections are to be read disjunctively.
¶ 57 The State responds that the plain language and purpose of section 8-4 require
application of the firearm enhancement to any attempted murder that constitutes a
Class X felony, including the defendant’s attempted murder of a peace officer.
Section (c)(1) provides that “the sentence for attempt to commit first degree murder
is the sentence for a Class X felony.” The statute then lists four exceptions where
the attempt to commit first degree murder is still a Class X felony, but the
sentencing range is not 6 to 30 years’ imprisonment. The statute contains a final
exception when the attempted murder is not a Class X felony.
¶ 58 We agree with the State and the decisions finding that the firearm enhancements
in subsections (B) through (D) can apply to a sentence imposed under subsection
(A). The appellate dissent in this case and the opinions in cases finding that the
firearm sentencing enhancements do not apply to a sentence under subsection (A)
place great emphasis on the use of semicolons in the statute. We decline to elevate
form over substance, however, and instead look to the plain language of the statute
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to determine whether the subsections of section 8-4(c)(1) are disjunctive or
conjunctive.
¶ 59 In interpreting a statute, words and phrases in a statute should not be considered
in isolation but should be interpreted in light of other relevant statutory provisions
and the statute as a whole. People v. Jackson, 2011 IL 110615, ¶ 12. Considering
the statutory provisions and the statute as a whole, we first note that subsection
(c)(1) provides that “the sentence for attempt to commit first degree murder is the
sentence for a Class X felony.” (Emphasis added.) 720 ILCS 5/8-4(c)(1) (West
2016). Subsection (A) provides that “an attempt to commit first degree murder
when at least one of the aggravating factors *** of Section 9-1 is present is a Class
X felony for which the sentence shall be a term of imprisonment of not less than 20
years and not more than 80 years.” (Emphasis added.) Id. § 8-4(c)(1)(A).
¶ 60 Subsections (B), (C), and (D) then set forth the firearm enhancements.
Subsection (B) states that an attempt to commit first degree murder while armed
with a firearm “is a Class X felony for which 15 years shall be added to the term of
imprisonment imposed by the court.” (Emphasis added.) Id. § 8-4(c)(1)(B).
Similarly, subsection (C) provides that “20 years shall be added to the term of
imprisonment imposed by the court” when the defendant “personally discharged a
firearm.” (Emphasis added.) Id. § 8-4(c)(1)(C). Subsection (D) provides that “25
years or up to a term of natural life shall be added to the term of imprisonment
imposed by the court” when the defendant “personally discharged a firearm that
proximately caused great bodily harm, permanent disability, permanent
disfigurement, or death to another person.” (Emphasis added.) Id. § 8-4(c)(1)(D).
¶ 61 It is clear from the preceding language, given its plain and ordinary meaning,
that subsection (c)(1) and subsection (A) set forth baseline sentences for the offense
of attempted first degree murder, i.e., the “term of imprisonment imposed by the
court,” with subsection (A) imposing a longer baseline sentence based upon one of
the aggravating factors specified in subsections (1), (2), and (12) of section 9-1(b).
Subsections (B), (C), and (D) then provide that the firearm enhancements of 15, 20,
or 25 years to natural life “shall be added to the term of imprisonment imposed by
the court.”
¶ 62 This interpretation of the statute is consistent with the reason for the law, the
problems sought to be remedied, and the purposes to be achieved. See Jackson,
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2011 IL 110615, ¶ 12. As the appellate court noted, subsection (A)’s enhanced
status-based sentence and the firearm enhancement subsections address separate
evils. The appellate majority correctly observed:
“The legislature has been explicit in its intent to punish attempted first degree
murder of a peace officer more severely than the same attempt on an ordinary
citizen. Moreover, the legislature has clearly expressed its intent to punish
offenses perpetrated with firearms with sentencing enhancements.” 2022 IL
App (3d) 190281, ¶ 34.
That the subsections address separate evils is evident when considering that the
subsections do not always overlap. For example, a defendant may attempt to
commit the first degree murder of a peace officer or fireman with a weapon other
than a firearm, so that only the legislature’s intent to punish the attempted murder
of a peace officer more severely would apply.
¶ 63 Moreover, as the State points out, the statutory interpretation embraced by the
dissent and the courts in Phagan and Holley would be contrary to the reasons for
the law, the problems sought to be remedied, and the purposes to be achieved.
Under that interpretation, a defendant who personally discharges a firearm in an
attempt to kill, for example, an accountant would be subject to a mandatory
minimum term of 26 years: the 6-year mandatory minimum for attempted murder
under subsection (c)(1), plus the 20-year firearm enhancement in subsection (C). If
the defendant committed the exact same act against a peace officer or fireman in
the course of performing his official duties, the defendant would be subject to a
mandatory minimum sentence of 20 years under subsection (A). This result is
contrary to the legislature’s express intent to punish the status-based offense in
subsection (A) more severely.
¶ 64 We also disagree with the Phagan court’s analysis finding support for its
holding in the fact that subsections (A) and (E) could not be read conjunctively,
because a defendant who attempted the first degree murder of a peace officer could
not also have attempted first degree murder plus a mitigating circumstance. 2019
IL App (1st) 153031, ¶ 99. Phagan found such an “impossible reading of the
statutory scheme as a whole” would lead to an absurd result. Id. ¶ 100. Phagan also
believed that reading the statute conjunctively would allow the trial court to impose
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the 15-year, 20-year, and 25-year to natural life subsections on top of one another.
Id. ¶ 101.
¶ 65 We disagree. As the appellate court in this case found, subsection (E) is not an
enhancement but rather sets forth a mitigating circumstance reducing the baseline
sentence in subsection (c)(1). That the mitigating circumstance does not apply to
subsection (A) is of no consequence. The plain language of the statute establishes
that subsection (A) sets forth a basis to increase the sentence in subsection (c)(1),
while subsection (E) sets forth a basis to decrease that sentence. Subsections (B)
through (D) set forth a basis to increase the sentences in subsection (c)(1) and
subsection (A) when a firearm is involved in the offense.
¶ 66 There also is no danger of an impermissible double enhancement in our
interpretation of the statute. A trial court could not simultaneously impose the 15-
year, 20-year, and 25-year to natural life subsections under our reading of the statute
because double enhancements are prohibited unless the legislature has clearly
intended such a penalty and has clearly expressed that intention in the statute.
People v. Sharpe, 216 Ill. 2d 481, 530 (2005). The legislature has not clearly
expressed that intention in section 8-4, so simultaneous imposition of the firearm
enhancements would be prohibited multiple enhancements.
¶ 67 Defendant also argues that the decision in Apprendi, 530 U.S. 466, confirms
that the four sentencing enhancements of the attempt statute are independent
crimes, each with its own sentencing scheme, because each enhancement is based
on a different Apprendi element.
¶ 68 As the State argues in response, the Apprendi decision is inapposite. Apprendi
held that any fact, other than a prior conviction, that increases the penalty for a
crime beyond the prescribed statutory range must be proven by the factfinder
beyond a reasonable doubt. 530 U.S. at 483-84. Defendant does not argue that the
State did not prove beyond a reasonable doubt that defendant committed attempted
first degree murder, that the victim was a peace officer, or that defendant personally
discharged a firearm during the commission of the attempted first degree murder.
Defendant instead argues that, because each fact that alters the sentencing range in
subsection (c)(1) is an element that must be proven to the factfinder beyond a
reasonable doubt, then each of those provisions must constitute a distinct crime that
cannot be combined to require a greater sentencing range. There is no merit to this
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argument, as Apprendi does not prohibit combining multiple facts, proven beyond
a reasonable doubt, to increase the sentencing range applied to the defendant’s
conduct.
¶ 69 Finally, we find no merit to defendant’s argument that the legislative history of
section 8-4 requires reversal of the appellate court’s opinion. In support of this
argument, defendant points to the fact that the legislature added subsection (E) to
section 8-4 following the appellate court’s Douglas decision. In doing so, the
legislature did not amend the sentence enhancement provisions of the statute,
suggesting that the legislature viewed the Douglas court’s interpretation of the
statute as correct. As the State points out, however, the legislature inserted the word
“and” to separate the subsections when it added subsection (E) to the statute. The
State asserts this amendment also could be construed as correcting the Douglas
court’s interpretation of the statute as disjunctive rather than conjunctive. We agree
with the State that the legislature’s amendment of the statute to add subsection (E)
does not indicate a clear legislative response to the Douglas decision. To the extent
that the decisions in Douglas, Phagan, and Holley held that section 8-4(c)(1)’s
subsections cannot be read conjunctively, they are hereby overruled.
¶ 70 In sum, we find the plain language of section 8-4 sets forth a baseline sentence
for a Class X felony, as well as an increased baseline sentence for a Class X felony
involving one of the aggravating factors specified in the statute. The statute also
sets forth a mitigating circumstance that may apply to the baseline sentence in
subsection (c)(1), along with firearm enhancements that may apply to the baseline
sentences in subsections (c)(1) and (c)(1)(A). It follows that defendant was properly
sentenced to a sentence of 30 years’ imprisonment under subsection (A) of the
statute, plus an additional 20 years’ imprisonment under subsection (C), for
discharging a firearm in the attempted murder of Officer Scott.
¶ 71 CONCLUSION
¶ 72 The trial court did not abuse its discretion in denying defendant’s motion for
appointment of a second expert at the public’s expense. The defendant was not
denied his right to the mental health assistance required by Ake. Dr. Witherspoon
fulfilled Ake’s constitutional requirements in examining defendant and assisting in
the evaluation, preparation, and presentation of defendant’s defense. The defendant
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also was not subject to an improper double enhancement when he received a 20-
year sentence under the firearm enhancement of subsection (C) of section 8-4(c)(1),
in addition to his 30-year sentence under subsection (A) of the statute. We therefore
affirm defendant’s conviction and sentence.
¶ 73 Judgments affirmed.
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