{ "id": 4267929, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERRON DOUGLAS, Defendant-Appellant", "name_abbreviation": "People v. Douglas", "decision_date": "2007-01-09", "docket_number": "No. 1\u201404\u20143077", "first_page": "21", "last_page": "27", "citations": [ { "type": "official", "cite": "371 Ill. App. 3d 21" } ], "court": { "name_abbreviation": "Ill. 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App. 3d 49", "category": "reporters:state", "reporter": "Ill. 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HERRON DOUGLAS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE WOLFSON\ndelivered the opinion of the court:\nHerron Douglas was convicted by the trial court of two counts of attempted 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 attempted first degree murder and to remand the case for resentencing on the lesser charge.\nThe 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.\nWe affirm the convictions, but we decline to order resentencing of the defendant.\nI. Attempted First Degree Murder of Two Peace Officers\nDefendant admits he fired shots at two men as they stood on a street comer, patting down a member of his gang. But he contends the evidence was not sufficient to support the trial court\u2019s finding that he knew or should have known he was firing at peace officers.\nIt is not our role to second-guess a trial court\u2019s 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\u2019s guilt. Young, 128 Ill. 2d at 51.\nThe 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 plainclothes, but were also wearing bulletproof vests and police belts with handcuffs and weapons. Officer Lopez had his shield in a visible location.\nThe 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 Martinez. In addition, both officers and Gilberto Irizarry testified that Martinez yelled out, \u201cBetty up, Betty up,\u201d 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 \u201cpolice, police.\u201d In addition, Irizarry testified that when he and defendant exited the house, the men standing on the corner told defendant at least twice \u201cto put the pistol down,\u201d leading him to believe that they were police officers.\nFrom 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\u2019s finding that defendant was proved guilty beyond a reasonable doubt of attempted 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).\nII. The 20-Year Sentencing Enhancement\nAt the sentencing hearing on July 27, 2004, the trial court noted the sentencing range for attempted first degree murder of a peace officer is 20 to 80 years. The court also referred to the enhancement provisions for attempted murder with a firearm, contained in sections 4(c)(1)(b), (c)(1)(C), and (c)(1)(D) of the Criminal Code of 1961 (720 ILCS 5/8 \u2014 4(c)(1)(B), (c)(1)(C), (c)(1)(D) (West 2004)). The State informed the court the enhancement provisions did not apply. The court agreed and sentenced the defendant to the two concurrent 35-year terms.\nThe defendant does not directly challenge the sentence he received. Nor did the State attempt to appeal the court\u2019s sentence. In its appellee\u2019s brief in this case, filed April 10, 2006, the State, for the first time, contended the defendant\u2019s sentence is void because it does not contain the mandatory 20-year enhancement.\nWhat happened between July 27, 2004, and April 10, 2006, that caused the State\u2019s change of position? It was People v. Sharpe, 216 Ill. 2d 481, 839 N.E.2d 492 (2005).\nIn the three years before Sharpe was decided, the Illinois Supreme Court had invalidated nine penalties based on a finding that \u201ca penalty violates the proportionate penalties clause [(Ill. Const. 1970, art. I, \u00a711)] where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more severely.\u201d People v. Moss, 206 Ill. 2d 503, 522, 795 N.E.2d 208 (2003). The comparison referred to is known as the \u201ccross-comparison\u201d analysis. Sharpe, 216 Ill. 2d at 488.\nThe 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 N.E.2d 994 (2003), a case concerning attempted first degree murder with a firearm. It was Morgan that was relied on at this defendant\u2019s sentencing for the reason why the 20-year enhancement could not apply.\nPeople v. Sharpe overruled Moss, Walden, and Morgan, along with the line of cases that led to those decisions. The court said:\n\u201cWe 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.\u201d Sharpe, 216 Ill. 2d at 533.\nThe supreme court adhered to the Sharpe holding in two subsequent cases \u2014People 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.\nThe State contends Sharpe renders the defendant\u2019s 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 \u201cwhich does not conform to a statutory requirement is void.\u201d\nThe State\u2019s supposition that the defendant\u2019s sentence is void forms the basis for its claim that the mandatory enhancement must be applied. That supposition is based on the theory that Sharpe reaches back and wipes out Moss, Walden, and Morgan \u2014 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, \u00a71.\nWe 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 \u201chas proved to be nothing but problematic and unworkable, and that it needs to be abandoned.\u201d Sharpe, 216 Ill. 2d at 519. The supreme court clearly was departing from stare decisis, finding good cause to do so \u201cwhen governing decisions are unworkable or are badly reasoned.\u201d Sharpe, 216 Ill. 2d at 520.\nTime after time, in Sharpe and the cases that follow it, the supreme court carefully avoided any suggestion that Moss, Walden, or Morgan was constitutionally defective. See Guevara, 216 Ill. 2d at 544 (\u201cIn People v. Sharpe, *** we held that we would no longer recognize the third type of proportionate penalties challenge \u2014 the cross-comparison challenge\u201d); In re M.T., 221 Ill. 2d at 521 (\u201cwe no longer apply cross-comparison analysis in proportionate penalties cases\u201d).\nThe closest Sharpe came to a constitutional reference was at Sharpe, 216 Ill. 2d at 520, where it set out its three reasons for \u201cdeparting from stare decisis and abandoning cross-comparison proportionate penalties analysis.\u201d First, said the court, the governing decisions are \u201cbadly reasoned.\u201d Second, the decisions have proved \u201cunworkable.\u201d Third:\n\u201c[T]his analysis set this court on a collision course with separation of powers principles. Were this court to keep using the cross-comparison 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, \u2018serious detriment *** prejudicial to public interests\u2019 is likely to arise from this case law. [Citation.]\u201d (Emphasis added.) Sharpe, 216 Ill. 2d at 521.\nThe court\u2019s 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\u2019s 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).\nWe conclude the defendant\u2019s 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.\nWe 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, 376 Ill. App. 3d 951 (2006) (petition for rehearing pending); the other is People v. Harvey, 366 Ill. App. 3d 119, 851 N.E.2d 182 (2006), appeal allowed, 221 Ill. 2d 654 (2006).\nIn 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 \u201cconstitutional dimensions,\u201d the court not only rejected the defendant\u2019s contention, it allowed the State to successfully move to add a 15-year enhancement. Lee, slip op. at 9.\nHarvey held \u201cthe new rule announced in Sharpe is of constitutional magnitude.\u201d Harvey, 366 Ill. App. 3d at 132. Therefore, Sharpe was applied retroactively to void the defendant\u2019s sentence and require the enhancement. Harvey, 366 Ill. App. 3d at 132.\nTo the extent that Lee and Harvey conflict with our holding in this case, we decline to follow them. Lee and Harvey hold the defendant\u2019s original sentencing was rendered void by Sharpe and Guevara. For reasons we have stated, we do not agree.\nIII. Applicability of the Sentencing Enhancement\nThere is another, independent, reason for us to hold the defendant\u2019s sentence cannot be sent back for enhancement.\nThe defendant was convicted and sentenced for attempted first degree murder of a peace officer. The offense is contained in 8 \u2014 4(c)(1)(A) of the Criminal Code (720 ILCS 5/8 \u2014 4(c)(1)(A) (West 2000)). It carries a Class X sentence of 20 to 80 years. There is no sentencing enhancement in section 8 \u2014 4(c)(1)(A). The enhancements for attempted murder concerning a firearm are contained in sections 8 \u2014 4(c)(1)(B), (c)(1)(C), and (c)(1)(D), each a different offense.\nThat 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 \u2014 8\u20141(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).\nCONCLUSION\nFor the reasons stated, we affirm the defendant\u2019s convictions and sentences and we reject the State\u2019s request to send the cause back to the trial court for imposition of an enhanced sentence.\nAffirmed.\nHOFFMAN and HALL, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE WOLFSON" } ], "attorneys": [ "Michael J. Pelletier and Vanessa Caleb Herman, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine; State\u2019s Attorney, of Chicago (James Fitzgerald, Annette Collins, and Shawn D. McCarthy, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HERRON DOUGLAS, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1\u201404\u20143077\nOpinion filed January 9, 2007.\nRehearings denied February 2, 2007, and February 5, 2007.\nMichael J. Pelletier and Vanessa Caleb Herman, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine; State\u2019s Attorney, of Chicago (James Fitzgerald, Annette Collins, and Shawn D. McCarthy, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0021-01", "first_page_order": 39, "last_page_order": 45 }