People v. Butler

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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