No. 3--05--0793
Filed July 24, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 04--CF--613
)
MARTIZE SMOLLEY, )
) Honorable Scott Shore,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
At the conclusion of a bench trial, defendant, Martize
Smolley, was convicted in the circuit court of Peoria County of
two counts of felony murder in violation of section 9--1(a)(3) of
the Criminal Code of 1961 (720 ILCS 5/9--1(a)(3)(West 2004)) for
killing Kelly Houser and her daughter, Amy Allen. Defendant was
also found guilty of unlawful possession of a firearm. Pursuant
to section 5--8--1(a)(1)(c)(ii) of the Unified Code of
Corrections (the Code) (730 ILCS 5/5--8--1(a)(1)(c)(ii) (West
2004)), defendant received a mandatory sentence of natural life
in prison. He appeals, claiming section 5--8--1(a)(1)(c)(ii) of
the Code is unconstitutional as applied to him. Specifically,
defendant argues the sentence mandated by the Code violates the
proportionate penalties clause of the Illinois Constitution. We
disagree and affirm his sentence.
BACKGROUND
On June 14, 2004, Kelly Houser and her daughter, Amy Allen,
got into the car and left home with the intent to buy some ice
cream. Houser would need some money to pay for the ice cream so
she drove to an ATM located in the 500 block of Northeast
Jefferson Street in Peoria, Illinois.
On the same evening, defendant armed himself with a fully
loaded handgun and proceeded toward the same ATM. With the
intent to rob someone at the ATM, defendant waited across the
street and watched until Houser's car approached the machine.
Defendant ran across the street. As Houser withdrew $10 from the
ATM, defendant moved toward the car from the rear on the driver’s
side. He removed the gun from his waistband and stuck it in the
driver’s-side front window of the car. Thereafter, the defendant
fired a single shot. The bullet entered Kelly Houser’s left
cheek, perforating her brain stem before exiting the back of her
head. The bullet then entered the left side of Amy Allen’s head
2
between her eye and her ear, lodging in the back of her brain.
Kelly Houser and her daughter both died as a result of gunshot
wounds to the head.
The gun that killed Houser and Allen was recovered from
defendant’s bedroom; defendant ultimately confessed to the
murders. Defendant acknowledged that he intended to rob Houser,
but claimed that he did not intend to fire the weapon. Defendant
informed police that Houser began to drive away after he stuck
the gun in the window and movement from the car caused his hand
to be struck by the door frame. This contact caused the weapon
to accidentally discharge.
Following arguments by the parties, the court found
defendant guilty of two counts of felony first degree murder and
one count of unlawful possession of a firearm. The court entered
not guilty verdicts on two first-degree murder counts that
charged defendant with knowingly discharging a handgun into a
motor vehicle occupied by the victims while knowing that such an
act created a strong probability of death or great bodily harm.
The trial court ordered a presentence investigation report,
but noted that it ultimately had no discretion in sentencing
defendant due to the mandatory natural life sentence requirements
contained in the Code applicable to multiple convictions for
3
murder. At the sentencing hearing, the State argued that a
natural life sentence was appropriate and required by the Code.
Defense counsel argued that mitigating circumstances existed that
should be considered, most notably that the defendant’s juvenile
record contained only nonviolent burglaries and that the
defendant received good grades as he pursued an education while
detained in juvenile facilities. Defense counsel also argued
that the defendant claimed not to intend to kill anyone while
committing the armed robbery. The court imposed the term of
natural life imprisonment without the possibility of parole.
This appeal followed.
ANALYSIS
Defendant raises a single issue on appeal: the
constitutionality of the mandatory natural life sentencing
statute (730 ILCS 5/5--8--1(a)(1)(c)(ii) (West 2004)) as it
applies to him. We review questions concerning the
constitutionality of a statute de novo. People v. Moss, 206 Ill.
2d 503, 795 N.E.2d 208 (2003).
Section 5--8--1(a)(1)(c)(ii) of the Code states:
"(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
4
under this Section, according to the following
limitations:
(1) for first degree murder
***
(c) the court shall sentence the defendant to
a term of natural life imprisonment when the death
penalty is not imposed if the defendant
***
(ii) ***irrespective of the defendant’s
age at the time of the commission of the
offense, is found guilty of murdering
more than one victim[.]" 730 ILCS 5/5--
8--1(a)(1)(c)(ii) (West 2004).
Defendant argues that this statute, as applied to him,
violates the proportionate penalties clause of the Illinois
Constitution. It is axiomatic to note that the legislature has
discretion to prescribe penalties for defined offenses. People
v. Taylor, 102 Ill. 2d 201, 464 N.E.2d 1059 (1984). The
legislature’s discretion includes the power to prescribe
mandatory sentences, even if such sentences restrict the
judiciary’s discretion in imposing sentences. Taylor, 102 Ill.
2d at 208. However, the power to prescribe sentences is not
5
absolute as the penalty must satisfy constitutional
constrictions. People v. Davis, 177 Ill. 2d 495, 687 N.E.2d 24
(1997); People v. Morris, 136 Ill. 2d 157, 554 N.E.2d 235 (1990).
One such constitutional constriction that legislation must
satisfy is the proportional penalties clause of the Illinois
Constitution. People v. Miller, 202 Ill. 2d 328, 781 N.E.2d 300
(2002).
The proportional penalties clause of the Illinois
Constitution states that all "penalties shall be determined ***
according to the seriousness of the offense." Ill. Const. 1970,
art. I, §11. Courts of review should be reluctant to override
the judgment of the legislature with respect to criminal
penalties. People v. Hamm, 149 Ill. 2d 201, 595 N.E.2d 540
(1992); People v. Gonzales, 25 Ill. 2d 235, 184 N.E.2d 833
(1962). It is also true, however, that when defining crimes and
their penalties, the General Assembly must consider the
constitutional goals of restoring an offender to useful
citizenship and of providing a penalty according to the
seriousness of the offense. Taylor, 102 Ill. 2d at 206.
When faced with a challenge that a statute is
unconstitutionally disproportionate as applied to a given
defendant, our review begins with the presumption that the
6
statute is constitutional. Miller, 202 Ill. 2d at 335. Because
of this presumption, the party challenging the statute bears the
burden of showing its invalidity. People v. Davis, 177 Ill. 2d
495, 687 N.E.2d 24 (1997). A statute may be deemed
unconstitutionally disproportionate as applied to a specific
defendant when "(1) the punishment for the offense is cruel,
degrading, or so wholly disproportionate to the offense as to
shock the moral sense of the community; (2) similar offenses are
compared and the conduct that creates a less serious threat to
the public health and safety is punished more harshly; or (3)
identical offenses are given different sentences." Miller, 202
Ill. 2d at 338.
Citing People v. Miller, 202 Ill. 2d 328, 781 N.E.2d 300
(2002), defendant argues that his natural life sentence, imposed
under section 5--8--1(a)(1)(c)(ii) of the Code, is
unconstitutionally disproportionate as applied to him. Defendant
claims the sentence is cruel, degrading, and so wholly
disproportionate to the offense committed that it should shock
the moral sense of the community. In Miller, our supreme court
found that the same section of the Code was unconstitutional as
applied to the Miller defendant. Miller, 202 Ill. 2d at 341.
Miller involved a 15-year-old defendant who had "one minute to
7
contemplate his decision to participate in the incident and
[stand] as a lookout during the shooting, but never handled [the]
gun." Miller, 202 Ill. 2d at 341. The Miller defendant was
convicted of two counts of first degree murder (720 ILCS 5/9--
1(a)(1) (West 1996)) given that his participation in the crime
rendered him accountable for the murders. See 720 ILCS 5/5--2(c)
(West 1996). Although 15 years old and a juvenile at the time of
the incident, the Miller defendant was automatically transferred
to adult criminal court pursuant to section 5--4(6)(a) of the
Juvenile Court Act of 1987 (705 ILCS 405/5--4(6)(a) (West 1996)).
Miller, 202 Ill. 2d at 340.
The Miller court's finding that the sentence, as applied to
the Miller defendant, was unconstitutionally disproportionate was
based upon the convergence of "these three statutes" (the
automatic transfer statute, the accountability statute, and the
mandatory sentencing statute), combined with the fact that the
Miller defendant was "the least culpable offender imaginable."
Miller, 202 Ill. 2d at 341. Specifically, the court stated:
"[T]he convergence of the Illinois transfer statute,
the accountability statute, and the multiple-murder
sentencing statute eliminates the court’s ability to
consider any mitigating factors such as age or degree of
8
participation. A life sentence without the possibility of
parole implies that under any circumstances a juvenile
defendant convicted solely by accountability is incorrigible
and incapable of rehabilitation for the rest of his life."
Miller, 202 Ill. 2d at 342-43.
The holding set forth in Miller, regarding the convergence
of these three statutes, is fact specific. The court noted that
its decision "does not imply that a sentence of life imprisonment
for a juvenile offender convicted under a theory of
accountability is never appropriate. It is certainly possible to
contemplate a situation where a juvenile offender actively
participated in the planning of a crime resulting in the death of
two or more individuals, such that a sentence of natural life
imprisonment without the possibility of parole is appropriate."
Miller, 202 Ill. 2d at 341.
The defendant herein argues that similarities between this
case and Miller necessitate a finding that his sentence is
unconstitutional as applied. We disagree. It is true that, like
the Miller defendant, this defendant was one month shy of his
sixteenth birthday at the time of this offense, was automatically
transferred to adult criminal court, and received a mandatory
natural life sentence under section 5--8--1(a)(1)(c)(ii) of the
9
Code. However, the similarities end there. The differences
between this case and Miller, however, are significant.
The Miller court emphasized the difference between a
juvenile who "actively participate[s]" in a crime that leads to
the death of two or more individuals and one, like Miller, who is
culpable for acts "completed by other persons." Miller, 202 Ill.
2d at 341. Defendant was the principal and sole actor in this
crime. He planned the crime, took a loaded weapon to the crime,
waited across the street until vulnerable and unsuspecting
victims arrived at the ATM, and decided to point a fully-cocked,
loaded weapon into the victims' car. His finger was obviously on
the trigger, since he claimed the weapon fired when the victims'
car pulled forward and the door post hit his hand. He fired a
single shot that traveled through a mother’s head and into the
head of her daughter while they were merely trying to take $10
out of an ATM to buy ice cream on a warm summer evening. Unlike
the defendant in Miller, defendant was not held accountable for
someone else’s actions. He was held accountable for his own
actions. Despite defendant’s urging, we decline to expand Miller
to situations in which a juvenile defendant is the principal and
only party criminally liable. Our supreme courted focused on
the fact that the Miller defendant was "convicted solely by
10
accountability." Miller, 202 Ill. 2d at 343. That is simply not
the situation with this defendant.
Defendant argues that, pursuant to the mandatory life term
contained in the sentencing statute, "the court was unable to
consider the statutory mitigating factor" that he did not intend
to "kill these victims." Defendant's argument is a continuation
of his comments to the trial court during the sentencing and
posttrial motion hearings. During those hearings, defendant
argued that "some pretty good arguments in mitigation" were
available but for the mandatory life term. Defendant noted that
the presentence investigation report indicates his juvenile
record contained only delinquency ajudications for nonviolent
burglaries. He further noted that "while incarcerated" in
juvenile facilities, he received "an awful lot of A's and B's."
Defendant claims these facts coupled with his lack of intent to
kill anyone should have led the court to the conclusion that the
defendant was "a young man who is intelligent and otherwise ***
could have been a productive member of society." Therefore,
defendant argues, his mandatory life sentence should shock our
conscience and be held unconstitutionally disproportionate to the
crime he committed since the trial court was precluded from
considering factors in mitigation. We disagree.
11
Again, we note that the legislature has the authority to
prescribe mandatory sentences that restrict the judiciary's
discretion and ability to consider mitigating factors. Taylor,
102 Ill. 2d at 208. Therefore, the mere fact that the trial
court lacked the authority to consider the facts contained in the
presentence investigation report does not, in and of itself,
render this sentence unconstitutionally disproportionate.
As the defendant admits, prior to killing Kelly Houser and
Amy Allen, he committed multiple burglaries. While released and
on juvenile probation after the first burglary, defendant
committed the offenses of theft and criminal trespass to a
building. After his probation for those offenses terminated, he
committed his second burglary.
Again, while released on juvenile probation, defendant
violated that probation by committing a criminal trespass to a
residence. Following a period of confinement and home electronic
monitoring, defendant was again found in violation of his
probation and sentenced to the juvenile division of the Illinois
Department of Corrections. It was during this confinement in a
juvenile facility that defendant received his A's and B's.
Further review of defendant's history of confinement reveals,
however, that he did more than just study while confined.
12
In addition to being cited for numerous incidents of
possession of contraband and threatening others, on October 20,
2004, a youth counselor at the Peoria County Juvenile Detention
Center overheard defendant and another detainee discussing an
escape plan. Defendant talked about stabbing a staff person
during the escape. He also talked about waiting to hatch the
plan until a female was working and then "dropping" her.
Defendant stated that he "would not stop hitting her 'til she was
dead." While defendant was looking for something to cut himself
with to initiate his plan, staff intervened.
Contrary to defendant's assertion, the presentence
investigation report hardly supports the conclusion that
defendant would use his time incarcerated to become a "productive
member of society."
We also note that defendant was arrested on June 17, 2004,
three days after the murders. The murder weapon and extra
ammunition were found under his mattress in his bedroom at 1608
West Butler Street. Defendant undoubtedly had many opportunities
to dispose of the murder weapon before taking it to his bedroom
more than a mile from the murder scene. (The Illinois River is
only three or four blocks away from the murder scene.) His
actions in keeping the gun at home are at least consistent with
13
an intent to use it again. In summary, any mitigating factors
found in defendant's presentence report are far outweighed by
aggravating factors. Therefore, even if the trial court had
discretion in sentencing, we could not say that the natural life
sentence was an abuse of discretion.
The natural life sentence imposed on this defendant is
neither cruel, degrading, nor so wholly disproportionate to the
offense he committed as to shock the moral sense of the
community. Therefore, we find that section 5--8--1(a)(1)(c)(ii)
of the Code (730 ILCS 5/5--8--1(a)(1)(c)(ii) (West 2004)) is not
unconstitutional as applied to this defendant and affirm the
natural life sentence imposed by the trial court.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Affirmed.
LYTTON, P.J., and McDADE, J., concur.
14