2016 IL 118599

IN THE SUPREME COURT OF THE STATE OF ILLINOIS (Docket No. 118599) THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. VINCENT RIZZO, Appellee. Opinion filed June 16, 2016. JUSTICE KARMEIER delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Thomas, Kilbride, and Theis concurred in the judgment and opinion. Justice Burke specially concurred, with opinion, joined by Justice Freeman. OPINION ¶1 At issue in this case is the constitutionality of the 2012 version of section 5-6-1(p) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-6-1(p) (West 2012)), which, in pertinent part, precluded a disposition of supervision for those who have violated the speed parameters of section 11-601.5 of the Illinois Vehicle Code (625 ILCS 5/11-601.5 (West 2012)). 1 Defendant was charged with,

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Const. 1970, art. I, § 11), 3 insofar as that section precludes entry of an order for court supervision where a defendant, as here, is charged with violating section 11-601.5(b) of the Vehicle Code (see 730 ILCS 5/5-6-1(c), (p) (West 2012)); and (2) the legislature’s classification of said violation as a Class A misdemeanor, subject to strict liability, contravenes the same constitutional provisions. In an argument heading, defendant also suggested a violation of equal protection; however, there appears to be no correlative argument or supporting citations in the body of his motion.

¶5 Though defendant did not specify whether his constitutional challenges were facial, as applied, or both, the body of his motion offered only hypothetical situations wherein defense counsel believed the statutes might violate constitutional rights, and there was no attempt to show how the statutes would operate unconstitutionally in defendant’s circumstances. No hearing was ever held to adduce facts specific to the disposition or penalty that might reasonably be imposed upon this particular defendant.

¶6 In its response, the State argued that: (1) “a defendant’s eligibility—or lack therefore [sic]—for supervision is not constitutionally significant”; (2) the statutory elements of “aggravated speeding” and reckless driving are not, as defendant argued, identical for purposes of proportionate penalty analysis; and (3) the statutory preclusion of supervision as a disposition for section 11-601.5 violations is neither “so wholly disproportionate to the offense as to shock the moral sense of the community”—for purposes of proportionate penalty analysis—nor does it lack a “reasonable relationship between the legislature’s purpose and the statute”—for purposes of due process.

¶7 With respect to due process, the State concluded, “increasing a criminal penalty” for a violation of section 11-601.5, via mandatory misdemeanor conviction, “bears a rational relationship to the government’s purpose,” in that it “decreases the likelihood people will take certain actions (here speed).” With respect to the proportionate penalties clause, the State noted that “the actual, statutory elements” of reckless driving and “aggravated speeding” are not identical and submitted:

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“[Defendant] can’t show that denying supervision to aggravated speeders ‘shocks the moral sense of the community’ or that reckless driving and aggravated speeding are identical crimes. Put bluntly, the Defendant’s invocation of a constitutional provision that deals with sentences of death, torture, and life imprisonment, an invocation made without a single case suggesting that the ability to receive supervision is constitutionally significant, trivializes the Constitution.”

¶8 Defendant filed a reply insisting, inter alia, that aggravated speeding and reckless driving share identical elements. Therefore, defendant reasoned the divergent dispositional range, i.e., the preclusion of supervision as a dispositional option for a violation of section 11-601.5, violates the proportionate penalties clause.

¶9 Following hearings on the matter, the court filed a memorandum opinion and order on August 12, 2014. Therein, the circuit court declared section 5-6-1(p) of the Unified Code unconstitutional insofar as it “denies supervision to offenders of 625 ILCS 5/11-601.5.” The court specified: “This finding is limited to the denial of supervision. It does not affect the validity of the crime of Aggravated Speeding as either an [sic] Class B or A misdemeanor.”

¶ 10 En route to its conclusion, the court determined: “Given the serious problems individuals operating a vehicle at an excessive speed can cause, Illinois had a legitimate interest in enacting legislation defining and criminalizing excessive speeding. There is no violation of either Due Process or Equal Protection in designating excessive speeding as a misdemeanor.”

¶ 11 Turning to defendant’s proportionate penalties claim, the court first found no violation via application of the identical elements approach. The court rejected defendant’s contention that the offenses of reckless driving, for which supervision is an authorized disposition, and aggravated speeding, for which it was prohibited, share identical elements. The court observed that reckless driving requires the driver to act with a willful and wanton disregard for the safety of persons or property and, to so act, the driver must be proven to have consciously disregarded a substantial and unjustifiable risk in that regard. The court further noted that the legislature had considered making driving 40 miles per hour or more over the speed limit prima facie evidence of reckless driving but had ultimately declined to do so. The court observed:

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“The speed of a vehicle may be evidence of willful and wanton conduct but it is not an element of the charge [of reckless driving] and need not be proven. Aggravated Speeding requires proof of the specific speed the vehicle was going. There is no need to show willful or wanton conduct on the part of the driver. The elements in the two statutes are different so they may not be considered identical for purposes of the proportionate penalties clause.”

¶ 12 However, the court went on to find that denying the dispositional option of court supervision where a defendant has exceeded the speed limit by 40 miles per hour or more—here, allegedly, 100 miles per hour in a 55-mile-per-hour zone—is indeed “cruel and degrading punishment.” In arriving at that conclusion, the court compared aggravated speeding to other misdemeanors for which supervision is precluded—misdemeanors that the court deemed more serious because of elements of bodily injury or physical harm to property—and offenses like driving while license revoked or suspended, driving under the influence, driving without insurance, and theft, for which first-offense supervision is allowed. The court remarked on hypothetical collateral consequences attendant to a misdemeanor conviction. The judge also suggested that the legislature should have “given us their reasons for denying supervision to anyone convicted of Aggravated Speeding” and should “have *** informed us as to whether they were attempting to Prevent, Restrain, Rehabilitate, Deter, Educate or require Retribution.” Although the court acknowledged that “excessive speeding has the potential of creating grave injury to the public,” it again compared the legislature’s dispositional determination here to those for other offenses, where different elements are concerned: “The sentencing provision here, unlike many others in the criminal and motor vehicle codes does not differentiate between first offenders[,] circumstances surrounding the crime (injury or property damage)[,] or other aggravating factors found in the elements of other misdemeanors where there is mandatory denial of supervision.”

¶ 13 Citing dictionary definitions of “cruel”—“to inflict pain or suffering”—and “degrading”—“to reduce in grade, status; *** to expose to contempt, dishonor or disgrace”—the court concluded that denying the option of supervision where a defendant is guilty of driving 40 miles per hour over the speed limit qualifies as “cruel and degrading punishment.” The gist of the court’s reasoning is summarized in the following excerpt, which seemingly melds various constitutional standards and concerns—such as proportionate penalties, due process, and separation of

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“Mandating a conviction for a first offender for speeding where they [sic] may or may not have been mitigating factors, with no showing of physical harm, no showing of property damage, no showing of an intentional act or a showing of any surrounding circumstances is cruel and degrading. This is seen when the ramifications of a conviction are considered as well as the crime itself. There does not appear to be a relationship between the penalty and the crime alleged. The legislature has not given nor does there appear to be a rational basis for removing judicial discretion concerning sentencing for at least first time offenders. Clearly absent some serious repercussion from excessive speeding judges must be able to decide the appropriate sentence on a case by case basis.”

¶ 14 In Rule 18 findings appended to the court’s opinion and order, the court stated: “The only portion of this statute that is unconstitutional is the denial of supervision to first offenders. The statute may stand as creating different levels of misdemeanors for individuals speeding in excess of specific amounts over posted speed limits.” Although the court’s declaration of unconstitutionality in the body of its order was premised solely upon a violation of the proportionate penalties clause, in its Rule 18 findings the court indicated “[t]he constitutional provisions upon which [the declaration] is based include due process of law, equal protection of the law and violation of the proportional [sic] penalties clause.” The court found the pertinent portion of the statute “unconstitutional on it [sic] face and as applied to the case sub judice.” The court averred that the statute cannot reasonably be construed in a manner that would preserve its validity, opining: “A mandatory conviction for any violation of Aggravated Speeding without review of specifics of the facts or of the defendant’s background is not reasonably designed to remedy of [sic] the particular evil the legislature was targeting.”

¶ 15 The State filed a motion to reconsider, raising three main points in support thereof: (1) a recent opinion from this court, In re Derrico G., 2014 IL 114463, wherein this court affirmed, as constitutional, limitations on a trial court’s ability to order a disposition of supervision; (2) “the possibility that this case could have been decided on non-constitutional grounds”; and (3) lack of case law supporting the court’s finding.

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¶ 16 With respect to its first point, the State noted that this court in In re Derrico G. addressed the constitutionality of a statute (705 ILCS 405/5-615(1), (2) (West 2010)) which, at the time, effectively allowed supervision in certain juvenile cases only with the consent of the State’s Attorney. The circuit court ruled the statute unconstitutional, and this court reversed. The State, in this case, admitted that the contexts “are not identical” but maintained that Derrico G. offered additional support for the State’s contention that no Illinois court of review “has ever so much as hinted that a defendant’s ineligibility for supervision is unconstitutional.” The State suggested “if a statute giving the State’s Attorney veto power over supervision is constitutional, it is hard to see how a statute barring all offenders from supervision is unconstitutional.”

¶ 17 With respect to its second point, the State averred that the court had found the pertinent portion of the statute would be unconstitutional as applied to first offenders, and the court had suggested there are constitutional implications in denying a circuit court the ability to consider a defendant’s background in the dispositional phase of proceedings; however, the State observed, “there is no evidence in the record to suggest that the Defendant is a first offender,” and “[i]f the Defendant’s background and the facts of the case were such that the Court would not give him supervision, the Court’s decision could ‘rest on an alternative ground’ under Rule 18(c)(1).” (Emphases in original.)

¶ 18 In support of its argument, the State attached, as an exhibit, defendant’s certified driving abstract. As the State noted, the abstract showed, before his arrest in this case, the defendant had two prior convictions and four prior dispositions of supervision for moving violations. Defendant had prior convictions for driving on the left side of the road where prohibited and disregarding a stop/yield sign at an intersection. He had been afforded the consideration of supervision four times: twice for driving 15-25 miles per hour over the speed limit, once for disregarding a stop/yield sign, and once for driving the wrong way on a one-way street or highway.

¶ 19 For its third point, the State observed that the court had not offered any case law in support of its key propositions. Quoting our decision in People v. Sharpe, 216 Ill. 2d 481, 487 (2005), the State noted that courts “generally defer to the legislature in the sentencing arena because the legislature is institutionally better equipped to gauge the seriousness of various offenses and to fashion sentences accordingly.” The State took issue with the court’s reliance upon “the various unpleasant

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consequences of a misdemeanor conviction,” pointing out that case law holds the proportionate penalties clause and the eighth amendment are concerned only with “direct action by the government to inflict punishment” (emphasis in original), and the “collateral consequences by some other actor,” upon which the court relied, are simply irrelevant. Finally, the State observed that the court, in its Rule 18 findings, stated that the statute violates the constitutional principles of due process and equal protection; however, “the opinion lacks any analysis or case law explaining, for instance, what exact legislative classification is being made, what test that classification is subject to, any [sic] why that classification is unconstitutional.”

¶ 20 Defense counsel filed a response to the State’s motion, arguing that the motion to reconsider was “improper” in that, according to defense counsel, the “motion does not inform the trial court of newly discovered evidence that was unavailable at the time of the original hearing, does not alert the court to changes in the law, and does not apprise the court of any errors it made in its application of existing law.”

¶ 21 After a brief hearing, the circuit court denied the State’s motion without further comment. The State filed a timely notice of appeal.

¶ 22 ANALYSIS ¶ 23 We begin with applicable standards, which favor upholding the constitutionality of a challenged statute. As this court has often emphasized, “Constitutional challenges carry the heavy burden of successfully rebutting the strong judicial presumption that statutes are constitutional.” People v. Patterson, 2014 IL 115102, ¶ 90. That presumption applies with equal force to legislative enactments that declare and define conduct constituting a crime and determine the penalties imposed for such conduct. People v. Dunigan, 165 Ill. 2d 235, 244 (1995). “To overcome this presumption, the party challenging the statute must clearly establish that it violates the constitution.” Sharpe, 216 Ill. 2d at 487. Courts have a duty to uphold the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor of the statute’s validity. Patterson, 2014 IL 115102, ¶ 90. The constitutionality of a statute is a matter of law, and accordingly we review the circuit court’s conclusion de novo. Sharpe, 216 Ill. 2d at 486-87. ¶ 24 This court has recently reiterated that facial and as-applied challenges are not interchangeable, and there are fundamental distinctions between them. People v.

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Thompson, 2015 IL 118151, ¶ 36. “An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party. [Citation.] In contrast, a facial challenge requires a showing that the statute is unconstitutional under any set of facts, i.e., the specific facts related to the challenging party are irrelevant.” Id. The burden on the challenger is particularly heavy when a facial constitutional challenge is presented. Bartlow v. Costigan, 2014 IL 115152, ¶ 18. “The fact that the statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.” Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, ¶ 33. So long as there exists a situation in which the statute could be validly applied, a facial challenge must fail. People v. Davis, 2014 IL 115595, ¶ 25; Hill v. Cowan, 202 Ill. 2d 151, 157 (2002).

¶ 25 In this case, the circuit court stated, in its Rule 18 findings, that it was holding the statute unconstitutional facially and as applied; however, in the latter regard, prior to the court’s ruling, there was no evidence adduced as to the “facts and circumstances” of the defendant or any discussion of how the statute would adversely affect defendant specifically. Nor does the court’s opinion and order contain any discussion or analysis of this defendant’s circumstances, i.e., his relevant background or the circumstances of the alleged offense, though the circuit court bemoaned the statutory impediment to consideration of those very factors.

¶ 26 As we recently reiterated in People v. Mosley, 2015 IL 115872:

“ ‘A court is not capable of making an ‘as applied’ determination of unconstitutionality when there has been no evidentiary hearing and no findings of fact. [Citation.] Without an evidentiary record, any finding that a statute is unconstitutional ‘as applied’ is premature.’ ” Mosley, 2015 IL 115872, ¶ 47 (quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)).

Because there was no evidentiary hearing and there were no findings of fact, the circuit court could not have made a separate as-applied finding. “When there has been no evidentiary hearing and no findings of fact, the constitutional challenge must be facial.” Mosley, 2015 IL 115872, ¶ 49. In any event, the court’s as-applied finding would be irrelevant in light of its finding that the statutory provision was facially unconstitutional, since “a facial challenge requires a showing that the statute is unconstitutional under any set of facts.” (Emphasis added.) People v. Thompson, 2015 IL 118151, ¶ 36.

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¶ 27 We note, at the outset, that the circuit court’s opinion and order contains an ambiguous analysis and ill-defined concerns en route to its conclusion that section 5-6-1(p) is unconstitutional. The final paragraph of the order appears to identify only a violation of the proportionate penalties clause; however, the court’s references in its Rule 18 findings to due process and equal protection concerns muddy the waters in that regard. We nonetheless believe the court’s finding of unconstitutionality is grounded upon a perceived violation of the proportionate penalties clause—because the court says so in the concluding paragraph of its order proper—and we will proceed principally on that basis. However, because the circuit court used due process terminology in portions of the order ostensibly dealing with proportionate penalty concerns, we will briefly address aspects of due process. We will not address equal protection at all, as defendant did not present any argument in that regard, and the circuit court’s order is bereft of any equal protection analysis. Simply saying, in Rule 18 findings, that a finding of unconstitutionality is based upon equal protection does not make it so. With those qualifications, we address the proportionate penalty issue.

¶ 28 As this court recently observed in People v. Williams, 2015 IL 117470, ¶ 9, a proportionality challenge derives from article I, section 11, of the Illinois Constitution of 1970. Section 11, commonly referred to as the proportionate penalties clause, 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. After our decision in Sharpe—jettisoning the “problematic and unworkable” cross-comparison approach to proportionate penalties review (Sharpe, 216 Ill. 2d at 519)—two bases remain for mounting a proportionate penalties challenge. A defendant can argue that the “penalty for a particular offense is too severe under the ‘cruel or degrading’ standard or that the penalty is harsher than the penalty for a different offense that contains identical elements.” (Emphasis added.) Williams, 2015 IL 117470, ¶ 9. Defendant in this case tried both approaches.

¶ 29 The circuit court rejected the latter, noting that the crime of reckless driving—the offense with which defendant compared aggravated speeding, for purposes of the identical elements test—“requires the driver to act with a willful and wanton disregard for the safety of persons and property,” which, the court aptly observed, “is clearly not an element of Aggravated Speeding.” Conversely, the court noted: “Aggravated Speeding requires proof of the specific speed the vehicle was going. There is no need to show willful and wanton conduct on the part of the - 10 -

driver. The elements in the two statutes are different so they may not be considered identical for purposes of the proportionate penalties clause.” In its opinion and order, the court also specifically referenced the legislature’s decision to treat the two offenses separately. We find the circuit court’s identical elements analysis sound.

¶ 30 Not so with respect to the remainder of the court’s proportionate penalty analysis. The circuit court commences that discussion with the question: “Is the penalty such that is [sic] cruel and degrading?” The court then cites our decision in Sharpe for the proposition that a penalty violates the proportionate penalties clause when “the greater penalty [is] so disproportionate that it shock[s] the moral sense of the community or [is] cruel and degrading.” What follows is a proportionate penalty analysis that, first, attempts to compare section 11-601.5(b) violations to other traffic offenses, misdemeanors, and felonies for which a disposition of supervision is prohibited, or for which supervision is allowed for a first offense, then suggests—without any meaningful discussion—that aggravated speeding poses a lesser threat to public health or safety:

“Unlike many of the other misdemeanors precluded from receiving a sentence of supervision[,] here bodily injury is not an element in Aggravated Speeding. There is not an element of physical harm to property. Many of the statutes listed allow supervision if it is the first offense, such as Driving on Revoked or Suspended License; Driving Under the Influence; Driving Without Insurance; or Theft.”

¶ 31 The circuit court then goes on to cite possible, collateral consequences of conviction as relevant to its finding: “It will be a misdemeanor conviction that would need to be disclosed on job applications and loan applications. It could be a basis for denial of a mortgage, student loan or employment.” In the same paragraph, the court references undeveloped concerns over mandatory sentencing and possible separation-of-power considerations: “It should be noted the denial of supervision for Aggravated Speeding does not consider the prior driving history of the offender *** [n]or does the mandatory conviction requirement allow the judge to consider the circumstances of the speeding in the case before them.”

¶ 32 In the midst of what is represented to be a proportionate penalty analysis, the court states that “[s]ubstantive due process requires the sentence be related to an injury to the Public.” In that paragraph, the court suggests that the legislature is

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required to furnish a statement as to the goal of this legislation, noting that the “legislature has not given us their reasons for denying supervision to anyone convicted of Aggravated Speeding, nor have they informed us as to whether they were attempting to Prevent, Restrain, Rehabilitate, Deter, Educate or require Retribution.”

¶ 33 The court does eventually acknowledge that “excessive speeding has the potential of creating grave injury to the public”—something legislators may have considered when they assigned the then-extant penalty range—however, the court immediately observes “[i]t is a potential, not a given, not an absolute.” Again, the court compares “[t]he sentencing provision here” to “many others in the criminal and motor vehicle codes” that “differentiate between first offenders” and allow for consideration of “circumstances surrounding the crime (injury or property damage).” Reiterating the question posed at the outset of what is represented to be a proportionate penalty analysis, the court again asks: “[D]oes the denial of supervision amount to cruel and degrading punishment?” The court’s answer, after consulting a dictionary of general usage and taking into account all of the foregoing considerations, is yes.

¶ 34 We note, initially, that the parties dispute, as a threshold matter, whether the legislature’s exclusion of supervision as an available disposition can run afoul of the proportionate penalties clause, the State arguing that supervision is neither a “punishment” nor a sentence, but rather “a statutory deferral of prosecution and possible avoidance of any judgment of conviction,” and that even “a ‘conviction’ alone cannot be unconstitutionally disproportionate since it is not even a specific sentence.”

¶ 35 We will assume, solely for purposes of this analysis, that supervision may constitute a “penalty” that represents the lowest range of a possible dispositional framework for a misdemeanor. This court has stated: “Viewed realistically, supervision with conditions attached (reporting, restitution, etc.) involves the imposition of a penalty despite the fact that defendant has not been found guilty, or an earlier finding of guilt has been vacated.” People v. Breen, 62 Ill. 2d 323, 326 (1976). However, even assuming that a disposition of supervision can be considered part of a “penalty” framework for purposes of proportionate penalty

- 12 - analysis, legislative restrictions on its availability, or withholding the option altogether, 4 cannot, under these circumstances, violate constitutional safeguards. ¶ 36 As this court observed in Sharpe: “We generally defer to the legislature in the sentencing arena because the legislature is institutionally better equipped to gauge the seriousness of various offenses and to fashion sentences accordingly. [Citation.] The legislature’s discretion in setting criminal penalties is broad, and courts generally decline to overrule legislative determinations in this area unless the challenged penalty is clearly in excess of the general constitutional limitations on this authority.” Sharpe, 216 Ill. 2d at 487. ¶ 37 In this context, this court has stated—more than once: “ ‘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.’ ” (Emphasis added.) People v. Miller, 202 Ill. 2d 328, 339 (2002) (quoting People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 421-22 (1894)). In other words, the fact that the legislature “has authorized a designated punishment for a specified crime” itself says something about the “general moral ideas of the people” with respect thereto, though obviously that designation is not determinative. ¶ 38 In Miller, this court noted that it has never defined what kind of punishment qualifies as “cruel” and “degrading” or “so wholly disproportioned to the offense as to shock the moral sense of the community.” Miller, 202 Ill. 2d at 339. “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.” Id. Objective evidence