People v. Levin

• Decision Date: 21 October 1993
• Docket Number: 72929 and 73108,Nos. 71542,71820,72736,s. 71542
• Citation: People v. Levin, 157 Ill.2d 138, 623 N.E.2d 317, 191 Ill.Dec. 72 (Ill. 1993)
• Parties: , 191 Ill.Dec. 72 The PEOPLE of the State of Illinois, Appellant, v. Jeffrey LEVIN, Appellee. The PEOPLE of the State of Illinois, Appellee, v. Johnnie TYSON, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Robert KNOOP, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Guy JOHNS, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Dennis CARTER, Appellant.
• Court: Illinois Supreme Court

Page 317

623 N.E.2d 317

157 Ill.2d 138, 191 Ill.Dec. 72

The PEOPLE of the State of Illinois, Appellant, v.Jeffrey LEVIN, Appellee.

The PEOPLE of the State of Illinois, Appellee, v.Johnnie TYSON, Appellant.

The PEOPLE of the State of Illinois, Appellee, v.Robert KNOOP, Appellant.

The PEOPLE of the State of Illinois, Appellee, v.Guy JOHNS, Appellant.

The PEOPLE of the State of Illinois, Appellee, v.Dennis CARTER, Appellant.

Nos. 71542, 71820, 72736, 72929 and 73108.

Supreme Court of Illinois.

Oct. 21, 1993.

As Modified on Denial of Rehearing Nov. 29, 1993.

Roland W. Burris, Atty. Gen., Springfield, Michael J. Waller, State's Atty., Waukegan, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, Kenneth R. Boyle and Robert J. Biderman, Office of the State's Attys.Appellate Prosecutor, Springfield, and Renee Goldfarb, Theodore Fotios Burtzos, William D. Carroll, Annette N. Collins and Susan R. Schierl, Asst. State's Attys., of counsel), for the People in No. 71542.

Daniel D. Yuhas, Deputy Defender, and Arden J. Lang and Gloria A. Morris, Asst. Defenders, of the Office of the State Appellate Defender, Springfield, for Jeffrey Levin and Guy Johns.

Randolph N. Stone and Rita A. Fry, Public Defenders, Chicago (Evelyn G. Baniewicz, Karen E. Tietz and Michaela J. Kalisiak, Asst. Public Defenders, of counsel), for Johnnie Tyson.

Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, William D. Carroll, Annette N. Collins and Susan R. Schierl, Asst. State's Attys., of counsel), for the People in Nos. 71820, 72736and73108.

Rita A. Fry, Public Defender, Chicago (Karen E. Tietz, Evelyn G. Baniewicz and Michaela J. Kalisiak, Asst. Public Defenders, of counsel), for Robert Knoop and Dennis Carter.

Roland W. Burris, Atty. Gen., Springfield, Donald D. Bernardi, State's Atty., Pontiac, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, William D. Carroll, Annette N. Collins and Susan R. Schierl, Asst. State's Attys., of counsel), for the People in No. 72929.

Justice FREEMANdelivered the opinion of the court:

In these consolidated appeals we are asked to decide whether, at resentencing, double jeopardy bars the State's second attempt to establish a defendant's eligibility for enhanced sentencing under either the Class X sentencing provision or the Habitual Criminal Act, where the appellate court has vacated the defendant's sentence for the State's failure to prove such eligibility in the first sentencing proceeding.

BACKGROUND

These several appeals are linked by the singular issue of whether double jeopardy attaches to enhanced-sentencing proceedings.Four of the appeals, People v. Levin, No. 71542, People v. Tyson, No. 71820, People v. Knoop, No. 72736, andPeople v. Johns, No. 72929, involve sentencing under the Class X provision of the Unified Code of Corrections(Ill.Rev.Stat.1987, ch. 38, par. 1005--5--3(c)(8)).The remaining appeal, People v. Carter, No. 73108, involves sentencing under the Habitual Criminal Act(Ill.Rev.Stat.1989, ch. 38, par. 33B--1).

Defendants Levin, Tyson, Knoop, and Johns were convicted and sentenced as Class X offenders (Ill.Rev.Stat.1987, ch. 38 par. 1005--5--3(c)(8)), while defendant Carter was convicted and sentenced as an habitual criminal (Ill.Rev.Stat.1989, ch. 38, par. 33B--1).

In each case (Levin, 207 Ill.App.3d 923, 152 Ill.Dec. 824, 566 N.E.2d 511;Tyson, 211 Ill.App.3d 1106, 184 Ill.Dec. 239, 613 N.E.2d 9, No. 1--90--0747(unpublished order under Supreme Court Rule 23);Knoop, No. 1--90--2010(unpublished order under Supreme Court Rule 23);Johns, 220 Ill.App.3d 1016, 163 Ill.Dec. 452, 581 N.E.2d 403;Carter, No. 1--89--0931(unpublished order under Supreme Court Rule 23)), the appellate court affirmed the defendant's conviction.However, the court found the State's proof of each defendant's qualifying prior convictions to be, in some manner, insufficient to support the imposition of enhanced punishment.The nature of the deficiency of proof is not important for purposes of our review.It is significant only that the court vacated the defendants' sentences and remanded those causes to the trial court for resentencing.

In Levin, the court held that, at resentencing, double jeopardy barred the State from again attempting to prove defendant's eligibility for enhanced punishment under the Class X sentencing provision.The State appealed to this court.

In contrast to Levin, the court in Tyson, Knoop, Johns and Carter held that double jeopardy did not preclude the State from seeking enhanced punishment at resentencing.Defendants appealed to this court, contending, inter alia, the applicability of double jeopardy to resentencing.

We granted the various parties' petitions for leave to appeal.(134 Ill.2d R. 315(a).)On this court's motion, the appeals were consolidated and we limited review to the issue of whether double jeopardy applies to Class X and habitual-criminal sentencing procedures.

DISCUSSION

Double Jeopardy and Sentencing

The double jeopardy clause of the fifth amendment provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."(U.S. Const., amend V.)Double jeopardy protections are similarly guaranteed by the Illinois constitution, which provides: "No person shall be * * * twice put in jeopardy for the same offense."(Ill. Const.1970, art. I, § 10.)The double jeopardy clause actually embraces three separate protections, which bar (1) retrial for the same offense after an acquittal, (2) retrial for the same offense after a conviction, and (3) multiple punishment for the same offense.(North Carolina v. Pearce(1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656;People v. Stefan(1992), 146 Ill.2d 324, 333, 166 Ill.Dec. 910, 586 N.E.2d 1239.)It is the first of these three protections upon which defendants seek to rely.

Generally, double jeopardy principles have not been applied to sentencing.The imposition of a particular sentence usually is not regarded as an acquittal of any more severe sentence than could have been imposed.(SeeBullington v. Missouri(1981), 451 U.S. 430, 438, 101 S.Ct. 1852, 1857, 68 L.Ed.2d 270, 278;see alsoUnited States v. DiFrancesco(1980), 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328.)Thus, double jeopardy imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside.SeePearce, 395 U.S. at 719, 89 S.Ct. at 2077-78, 23 L.Ed.2d at 666.

In Bullington v. Missouri(1981), 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, however, the Court carved out an exception to the general rule regarding the propriety of imposing a harsher sentence at retrial.In Bullington, the Court found that Missouri's separate capital sentencing hearing resembled the defendant's trial on the issue of guilt.The Court's analogy of the sentencing hearing to trial was supported by the presence of three specific factors at sentencing: (1) the sentencer's determination was guided by substantive standards and based on evidence introduced in a separate proceeding that formally resembled a trial; (2)the prosecution had to prove certain statutorily defined facts beyond a reasonable doubt; and (3) the discretion of the sentencer was restricted to precisely two sentencing alternatives.(Bullington, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270;Arizona v. Rumsey(1984), 467 U.S. 203, 209, 104 S.Ct. 2305, 2309, 81 L.Ed.2d 164, 170.)The formality of the separate proceeding, the standard of proof and the lack of sentencing discretion at the capital sentencing proceeding each paralleled the formality of the proceeding, the standard of proof and the lack of discretion in entering a verdict at the defendant's trial on the issue of guilt.Based upon the presence of these three trial-like factors, the Court characterized Missouri's capital sentencing proceeding as having "the hallmarks of the trial on guilt or innocence."SeeBullington, 451 U.S. at 439, 101 S.Ct. at 1858, 68 L.Ed.2d at 279.

By enacting a capital sentencing procedure that resembles a trial on the issue of guilt, Missouri requires the jury to determine whether the prosecution has " 'proved its case.' "(Bullington, 451 U.S. at 444, 101 S.Ct. at 1861, 68 L.Ed.2d at 282.)Thus, under the Missouri capital sentencing scheme, a jury sentence of life imprisonment served as an acquittal of " 'whatever was necessary to impose the death sentence.' "(Bullington, 451 U.S. at 445, 101 S.Ct. at 1861, 68 L.Ed.2d at 283, quotingState ex rel. Westfall v. Mason(Mo.1980), 594 S.W.2d 908, 922.)Accordingly, at resentencing, double jeopardy would bar the State's second attempt at obtaining the death penalty.

Bullington's determination that insufficient evidence to support the imposition of the death penalty barred any subsequent attempt to seek the death penalty flows directly from those principles announced in Burks v. United States(1977), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.In Burks, the Court reasoned that reversal for insufficient evidence is tantamount to an implicit acquittal by the trial court.Thus, the Court held that the double jeopardy clause forbids retrial of a defendant whose conviction is overturned by a reviewing court because of insufficiency of the evidence at trial.Burks, 437 U.S. at 18, 98 S.Ct. at 2150-51, 57 L.Ed.2d at 14.

Prior to Bullington, the Court had held, unequivocally, that if a defendant was convicted, sentenced to life imprisonment and then won reversal of his conviction, the State could seek the death penalty again upon retrial.(SeeStroud v. United States(1919), 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103.)However, Stroud, as the Bullington Court distinguished, did...