People v. Sawczenko-Dub

• Decision Date: 16 December 2003
• Docket Number: No. 1-02-2156.,1-02-2156.
• Citation: 803 N.E.2d 62,345 Ill. App.3d 522,280 Ill.Dec. 832
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tamara SAWCZENKO-DUB, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

803 N.E.2d 62

345 Ill. App.3d 522

280 Ill.Dec. 832

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tamara SAWCZENKO-DUB, Defendant-Appellant.

No. 1-02-2156.

Appellate Court of Illinois, First District, Second Division.

December 16, 2003.

Rehearing Denied January 12, 2004.

Rita A. Fry, Cook County Public Defender (Suzanne A. Isaacson, Assistant Public Defender, of counsel), Chicago, for Appellant.

Richard A. Devine, State's Attorney County of Cook (Renee Goldfarb, Alan J. Spellberg, William D. Carroll, Assistant State's Attorneys, of counsel), Chicago, for Appellee.

Justice BURKE delivered the opinion of the court:

Following a bench trial, defendant Tamara Sawczenko-Dub was convicted of first degree murder of her husband, Donald Dub (Don). The trial court sentenced her to 45 years' imprisonment; 20 years (the minimum) for first degree murder plus the mandatory 25-year enhancement that was added to the sentencing statute (730 ILCS 575-8-1(a)(1)(d)(iii) (West 2000)) by Public Act 91-404 (eff. January 1, 2000) because defendant personally discharged a firearm causing death during the course of the offense. On appeal, defendant contends that the sentencing scheme is unconstitutional because: (1) it violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), both as written and as applied; (2) it violates separation of powers principles; (3) it violates double jeopardy; and (4) it constitutes an impermissible double enhancement of the offense of first degree murder and her sentence. Defendant also challenges the sufficiency of the evidence, contending that the trial court should have found her guilty of second degree murder or, alternatively, of involuntary manslaughter. For the reasons set forth below, we affirm.

[Editor's Note: Text omitted pursuant to Supreme Court Rule 23.]

[THE PRECEDING MATERIAL IS NONPUBLISHABLE UNDER SUPREME COURT RULE 23]

ANALYSIS

As set forth above, this case involves numerous constitutional challenges to the first degree murder sentencing statute as amended by Public Act 91-404. Public Act 91-404 amended the penalty portion of various criminal offenses, including first degree murder, which the legislature deemed "the most serious offenses" (91 Ill. Gen. Assem., House Proceeding, May 13, 1999, at 67-68 (statements of Representative Turner)), by adding what has been referred to as the "15/20/25 to life" mandatory sentence enhancement or add-on provisions when the designated offenses involve the use of a firearm. See People v. Moss, 206 Ill.2d 503, 506, 276 Ill.Dec. 855, 795 N.E.2d 208 (2003). The relevant provision here provides:

"(a) Except as otherwise provided in the statute defining the offense, 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

(a) a term shall not be less than 20 years and not more than 60 years, or

* * *

(d)(i) if the person committed the offense while armed with a firearm, 15 years shall be added to the term of imprisonment imposed by the court;

(ii) if, during the commission of the offense, the person personally discharged a firearm, 20 years shall be added to the term of imprisonment imposed by the court;

(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)(i), (ii), (iii) (West 2000).

Initially, we note that the law with respect to constitutional challenges to a criminal statute is well-settled:

"A statute is presumed constitutional, and the party challenging the statute bears the burden of demonstrating its invalidity. [Citation.] This court has a duty to construe a statute in a manner that upholds its validity and constitutionality if it can reasonably be" done. [Citation.] The question of whether a statute is constitutional is subject to de novo review." Moss, 206 Ill.2d at 519-20, 276 Ill.Dec. 855, 795 N.E.2d 208.

I. Proportionate Penalties¹

The proportionate penalties clause of the Illinois Constitution provides that "[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Ill. Const.1970, art. I, § 11. "In evaluating whether a proportionate penalties violation has been established, the central question is whether the penalty at issue has been set by the legislature `according to the seriousness of the offense.' [Citation.]" Moss, 206 Ill.2d at 522, 276 Ill.Dec. 855, 795 N.E.2d 208, As Stated by the court in Hill, there are three separate tests to identify a proportionate penalties violation:

"First, a penalty violates the proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community. Second, a penalty is invalid under the proportionate penalties clause where similar offenses are compared, and conduct that creates a less serious threat to the public health and safety is punished more severely. Third, there is a violation of the proportionate penalties clause when identical offenses are given different sentences."²Hill, 199 Ill.2d at 452, 264 Ill.Dec. 670,771 N.E.2d 374.

In People v. Miller, 202 Ill.2d 328, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002), the court set forth the relevant principles in analyzing the first test, stating:

"`When the legislature has authorized a designated punishment for a specified crime, it must be regarded that its action represents the general moral ideas of the people, and the courts will not hold the punishment so authorized as either cruel and unusual, or not proportioned to the nature of the offense, unless it is a cruel or degrading punishment not known to the common law, or is a degrading punishment which had become obsolete in the State prior to the adoption of its constitution, or is so wholly disproportioned to the offense committed as to shock the moral sense of the community.' [Citation.]" Miller, 202 Ill.2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300.

The Miller court went on to note that it had never defined "what kind of punishment constitutes `cruel,' `degrading,' or `so wholly disproportioned to the offense as to shock the moral sense of the community.'" Miller, 202 Ill.2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300. The Miller court stated that this is so "because, as our society evolves, so too do our concepts of elemental decency and fairness which shape the 'moral sense' of the community." Miller, 202 Ill.2d at 339, 269 Ill.Dec. 503, 781 N.E.2d 300. Thus, the court concluded, "[w]e review the gravity of the defendant's offense in connection with the severity of the statutorily mandated sentence within our community's evolving standard of decency." Miller, 202 Ill.2d at 340, 269 Ill. Dec. 503, 781 N.E.2d 300.

Under the second test, a two-step, cross-comparison analysis must be conducted. Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d 374. Specifically, the Hill court stated that

"[f]irst, we consider whether the purposes of the compared offenses are distinct such that comparative proportionality review is not appropriate. [Citations.] Second, if the purposes are deemed related, we consider whether the offense with the harsher penalty is more serious than the offense with the less severe penalty." Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d 374.

With respect to the first part of this test, "it is well settled that if the statutory purposes are different, comparative proportionality review is inappropriate." Moss, 206 Ill.2d at 523, 276 Ill.Dec. 855, 795 N.E.2d 208. With respect to the second part of this test, the Hill court stated:

"[T]he legislature may perceive a need to enact a more stringent penalty provision in order to halt an increase in the commission of a particular crime. [Citations.] As an institution, the legislature is better equipped than the judiciary to identify and remedy the evils confronting our society and is more capable of gauging the seriousness of an offense. [Citations.] Thus, courts will generally defer to the legislature's judgment that a particular offense is more serious than another." Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d 374.

A. As Written

Defendant first contends that the sentencing scheme for first degree murder by personally discharging a firearm (hereinafter referred to as the 25-year firearm enhancement provision), set forth in section 5-8-1(a)(1)(d)(iii) (730 ILCS 5/5-81(a)(1)(d)(iii) (West 2000)), violates the proportionate penalties clause of the Illinois Constitution. Ill. Const. 1970, art. I, § 11. In this regard, defendant relies on the following two bases in support of her argument: that the scheme is so severe that itoffends the "moral sense" and that, when compared to other offenses, specifically the commission of murder that is accompanied by brutal and heinous conduct, it punishes more severely a less serious crime. In a footnote, defendant also argues that the lack of good time credit is unconstitutional.³

With respect to defendant's first basis, she maintains that the automatic 25-year firearm enhancement provision prohibits the trial court from fashioning a sentence that takes into account a defendant's rehabilitative potential. In other words, according to defendant, the provision forecloses the trial court, in actuality, from giving any weight to mitigation evidence, which, in the instant case, was substantial. With respect to defendant's second basis, she maintains that a single shot murder, with mitigating circumstances, is automatically punished by 45 years to life, whereas murder, that is accompanied by brutal and heinous conduct, is punishable by...