specially concurring:
I agree with the majority’s decision to affirm the circuit court, but I disagree with its approach to both of defendant’s claims of error.
I. Relief Under Supreme Court Rule 615
The problem with the majority opinion is apparent. The majority, citing People v. Jackson, 181 Ill. App. 3d 1048, 537 N.E.2d 1054 (1989), holds “[sjince there is no evidentiary weakness, we cannot invoke Rule 615 to reduce defendant’s conviction and sentence.” 382 Ill. App. 3d at 515. This opinion not only fails to provide guidance to practitioners, but also misleads them. The holding clearly implies that had the majority found an evidentiary weakness, it could have invoked Rule 615 to reduce defendant’s conviction and sentence in the absence of reversible error. I submit it could not. If multiple errors below are harmless in isolation but are cumulatively prejudicial to a defendant, we can and will grant relief. People v. Scott, 108 Ill. App. 3d 607, 615, 439 N.E.2d 130, 136 (1982); People v. Patterson, 44 Ill. App. 3d 894, 900, 358 N.E.2d 1164, 1169 (1976). But the Jackson standard would have us countermand trial court judgments that were admittedly not erroneous at all.
The majority applies a portion of the standard this court announced in People v. Jackson, 181 Ill. App. 3d at 1051-52, 537 N.E.2d at 1057. I believe Jackson was wrongly decided and that any analysis under Rule 615(b)(3) must depend on the presence or absence of reversible error. See People v. Thomas, 266 Ill. App. 3d 914, 926, 641 N.E.2d 867, 876 (1994); People v. Rodriguez, 258 Ill. App. 3d 579, 587, 631 N.E.2d 427, 433 (1994); People v. Sims, 245 Ill. App. 3d 221, 225, 614 N.E.2d 893, 896-97 (1993); People v. Kick, 216 Ill. App. 3d 787, 793, 576 N.E.2d 395, 399 (1991).
In discussing the Jackson standard, the majority omits the fourth element of that standard, which is that the trial court expressed dissatisfaction with imposing the mandatory sentence. 382 Ill. App. 3d at 513; Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056. The majority also ignores defendant’s arguments and reliance upon this aspect of the Jackson standard.
The Jackson line of cases would have us grant relief when, in the opinion of two or more judges, a mandatory minimum sentence imposed below is unduly harsh. People v. Plewka, 27 Ill. App. 3d 553, 559, 327 N.E.2d 457, 461 (1975). Jackson holds that we have authority to intervene after the trial judge “expressed] dissatisfaction” with imposing a mandatory minimum sentence. Jackson, 181 Ill. App. 3d at 1051, 537 N.E.2d at 1056. This element of Jackson makes it incompatible with our constitution’s separation of powers requirement. Ill. Const. 1970, art. II, §1. The majority simply ignores both this aspect of Jackson and defendant’s arguments in reliance on it.
It is well settled that “[t]he legislature has authority to *** establish the nature and extent of criminal penalties, and a court exceeds its authority if it orders a lesser sentence than is mandated by statute, unless ‘the [mandated] penalty shocks the conscience of reasonable men.’ ” People v. Wade, 116 Ill. 2d 1, 6, 506 N.E.2d 954, 956 (1987), quoting People ex rel. Ward v. Salter, 28 Ill. 2d 612, 615 (1963). Accord People v. Landers, 329 Ill. 453, 457,160 N.E. 836 (1927). We can substitute our judgment for a trial court’s when the trial court abuses its discretion in sentencing. 134 Ill. 2d R. 615(b)(4); People v. Stacey, 193 Ill. 2d 203, 211, 737 N.E.2d 626, 630 (2000). But we may not substitute our judgment for the legislature’s unless a sentence is constitutionally infirm. People ex rel. Carey v. Bentivenga, 83 Ill. 2d 537, 542, 416 N.E.2d 259, 262 (1981) (mandamus appropriate if a sentence less than the mandatory minimum is imposed); Kick, 216 Ill. App. 3d at 793, 576 N.E.2d at 399.
The sentencing provision of a criminal statute is unconstitutional when it violates the proportionate penalties clause of our constitution. Ill. Const. 1970, art. I, §11. A statute violates the proportionate penalties clause if the punishment is so wholly disproportionate to the offense as to shock the moral sense of the community or if different sentences can be imposed for crimes with identical elements. People v. Sharpe, 216 Ill. 2d 481, 487, 839 N.E.2d 492, 498 (2005). Defendant does not argue that the statutory minimum sentence is constitutionally infirm.
The defendant argues on appeal that while the trial court is bound by statutory minimum sentences, the appellate court is not. Surely, in crafting Rule 615, the supreme court did not intend to give the appellate court the discretion to nullify mandatory minimum sentences while disapproving of that practice in trial courts. See People ex rel. Daley v. Suria, 112 Ill. 2d 26, 33-34, 490 N.E.2d 1288, 1290-91 (1986); People ex rel. Daley v. Limperis, 86 Ill. 2d 459, 468-69, 427 N.E.2d 1212, 1216 (1981). If we read Rule 615(b)(3) to give an appellate court the discretion to ignore statutory minimum sentences, then the rule itself would violate our separation of powers clause. Ill. Const. 1970, art. II, §1. I see nothing in any supreme court case which leads me to believe that the court intends the rule to be read in such a way.
Courts siding with Jackson have argued that if we only employed our power to reduce the degree of a conviction in the presence of reversible error, that power would be redundant because of our reversal power. People v. Jones, 286 Ill. App. 3d 777, 781-82, 676 N.E.2d 1335, 1338 (1997). This is not so, as the supreme court demonstrated in People v. Davis, 112 Ill. 2d 55, 491 N.E.2d 1153 (1986). Larry Davis, recently released from prison, solicited bribes from his former fellow inmates, offering to get them to the top of early release lists. Word of Davis’s scheme reached investigators, who set up a sting operation. He was then tried and convicted of theft by deception. To prove this crime, the State must prove that the victim relied on the thief’s representations. Davis, 112 Ill. 2d at 59-60, 491 N.E.2d at 1154. Trial witnesses testified that the reason they contacted investigators was that they disbelieved Davis’s promises. The supreme court reversed Davis’s conviction because the State failed to prove the necessary element of the victim’s reliance (reversible error), and entered a conviction for attempted theft by deception pursuant to Rule 615(b)(3). Davis, 112 Ill. 2d at 63, 491 N.E.2d at 1156-57.
Therefore, the one time our supreme court has granted relief under Rule 615(b)(3), it did so after finding reversible error, without regard to any mandatory minimum sentence, and entered a conviction for a lesser-included offense that was not charged below. Davis, 112 Ill. 2d at 63, 491 N.E.2d at 1156-57. Though it did not comment on the Jackson line of cases, the Davis court’s analysis contradicts each element of the Jackson standard. Jackson is simply not good law.
Accordingly, I would examine defendant’s claim for reversible error. He concedes the State proved the elements of home invasion beyond a reasonable doubt. I would, therefore, affirm.
II. Claim of Inadequate Assistance
Defendant’s allegation of ineffective assistance of counsel argues that had he been informed he was not eligible for probation, he would have sought a favorable plea deal. As the majority notes, this allegation was contradicted by discussions between defendant and the trial court on the record. But the substance of defendant’s allegation also asks us to speculate about what plea negotiations would have taken place between himself and the prosecution, the State’s ultimate offer, and his decision to accept or reject it. Our supreme court’s recent guidance indicates defendant’s allegation is so speculative, we should not entertain it at all. People v. Bew, 228 Ill. 2d 122, 135 (2008). Accordingly, that is the basis on which I would affirm the trial court.