                                                                     FIFTH DIVISION
                                                                     September 28, 2007




No. 1-05-0563

THE PEOPLE OF THE STATE OF ILLINOIS,                         )       Appeal from the
                                                             )       Circuit Court of
                Plaintiff-Appellee,                          )       Cook County
                                                             )
       v.                                                    )
                                                             )
WILLIE THOMPKINS,                                            )
                                                             )       Honorable
                Defendant-Appellant.                         )       John A. Wasilewski,
                                                             )       Judge Presiding.

       JUSTICE O’MARA FROSSARD delivered the opinion of the court:

       The defendant Willie Thompkins appeals the December 8, 2004, order of the circuit court

of Cook County sentencing him to two concurrent natural life sentences for the murders of Gerald

Holton and Arthur Sheppard. We are asked to consider whether then-Governor Ryan’s

commutation order which removed the sentencing consequence of capital punishment from

defendant’s previously imposed death sentence also removed the requirement of a mandatory

natural life sentence under section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev.

Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c)). The circuit court ruled that the commutation order

did not remove the requirement of a mandatory natural life sentence and conducted a new

sentencing hearing after which defendant was resentenced to two concurrent terms of natural life.

Defendant challenges his sentence to natural life imprisonment which was imposed after the

resentencing hearing. For the reasons that follow, we affirm.
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                                          BACKGROUND

        This case has been the subject of four Illinois Supreme Court decisions. The facts leading

up to defendant’s arrest are detailed in People v. Thompkins, 191 Ill. 2d 438 (2000) (Thompkins

IV) and are only briefly summarized in the following paragraph.

        On December 23, 1980, the bodies of Gerald Holton and Arthur Sheppard were found

lying outside in an unincorporated area near Markham, Illinois. Both men died from gunshot

wounds to the head. The record reflects that on December 22, 1980, defendant’s sister-in-law,

Pamela Thompkins, arranged to purchase some cocaine from the victims. The victims brought

cocaine to Pamela’s home and placed it on a table in the basement, where Ronnie Moore and

Sandra Douglas were seated. Defendant appeared with a gun and told the victims, “Put *** your

hands on the table. This is the police.” Defendant and Moore then tied the victims with a

telephone cord. According to Douglas, a few hours later while she and Pamela were upstairs in

the home, she heard gunshots in the basement. She then saw a body being dragged to the garage

and saw Moore take Sheppard outside. Defendant later called Douglas and instructed her to

clean up the bloody basement. Upon his arrest, defendant gave an oral statement to police in

which he admitted his participation in the murders, but attempted to shift the blame to Moore.

Thompkins, 191 Ill. 2d at 442 (Thompkins IV). Defendant was found guilty by a jury of the two

murders and sentenced to death.

        The procedural history up through People v. Thompkins, 181 Ill. 2d 1 (1998) (Thompkins

III), is summarized in Thompkins, 191 Ill. 2d 438 (Thompkins IV) and will be repeated here only

as is necessary to give context to the issues in the instant case.


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       After defendant was sentenced to death for the murders of Holton and Sheppard he

appealed. On direct appeal, to our supreme court, the defendant’s convictions and death sentence

were affirmed. People v. Thompkins, 121 Ill. 2d 401 (1988) (Thompkins I).

       On post-conviction review, an evidentiary hearing was ordered on defendant’s claim that

he was denied effective assistance of counsel at his sentencing hearing because his counsel failed

to adequately investigate and present mitigating evidence. People v. Thompkins, 161 Ill. 2d 148

(1994) (Thompkins II). The circuit court conducted the evidentiary hearing and concluded that

defendant was not denied effective assistance of counsel at sentencing. Defendant appealed and

argued that the circuit court erred during the evidentiary hearing by refusing to allow defendant to

make several offers of proof, by leaving the bench during another offer of proof, and by ordering

defendant’s offers of proof to be stricken from the record. Thompkins, 181 Ill. 2d at 9

(Thompkins III). The Illinois Supreme Court ordered that the evidentiary hearing be reopened

and retained jurisdiction over the case. Thompkins, 181 Ill. 2d at 23-24 (Thompkins III).

       On remand, the circuit court held an evidentiary hearing and found there was significant

and relevant mitigation evidence that had not been offered by trial counsel at the sentencing

hearing in 1982. The circuit court found that this mitigation evidence could have been presented

to the sentencing judge to demonstrate that defendant was “ ‘a good son, husband, father, friend,

and worker’; that defendant ‘may have helped save the life of a youth officer who later became

the Chief of Police of Markham’; and that defendant ‘was kind to women and protective of

them.’ ” Thompkins, 191 Ill. 2d at 468 (Thompkins IV). The circuit court, however, concluded

that defendant received effective assistance of counsel at his initial sentencing hearing.


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Thompkins, 191 Ill. 2d at 468 (Thompkins IV).

       On direct appeal to the Illinois Supreme Court, defendant argued that “the facts presented

at the evidentiary hearing establish[ed] that [defendant] was deprived of his constitutional right to

effective assistance of counsel at his sentencing hearing” because “the evidentiary hearing showed

that his counsel failed to adequately investigate and present mitigating evidence.” Thompkins,

191 Ill. 2d at 468 (Thompkins IV). The Illinois Supreme Court agreed, vacated defendant’s death

sentence and remanded to the circuit court for a new sentencing hearing. Thompkins, 191 Ill. 2d

at 477 (Thompkins IV). However, the Illinois Supreme Court affirmed the sentencing judge’s

finding that defendant was still eligible for the death penalty. Thompkins, 191 Ill. 2d at 477

(Thompkins IV).

       On January 10, 2003, before defendant was resentenced, then-Governor George Ryan

granted clemency to all Illinois inmates who had been sentenced to death and to all those awaiting

possible death sentencing. The commutation order stated as follows:

               “Sentence Commuted to a Sentence Other Than Death for the

               Crime of Murder, So that the Maximum Sentence that may be

               Imposed is Natural Life Imprisonment Without the Possibility of

               Parole or Mandatory Supervised Release.”

The Illinois Supreme Court affirmed the constitutionality of this order in People ex rel. Madigan

v. Snyder, 208 Ill. 2d 457 (2004). After the Illinois Supreme Court affirmed this order, the

circuit court conducted a sentencing hearing on December 8, 2004. Defendant’s resentencing

hearing is the subject of the instant appeal.


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                                  RESENTENCING HEARING

       Before defendant was resentenced he filed a motion arguing that the language of the

governor’s clemency order specifically superseded section 5-8-1(a)(1)(c) of the Unified Code of

Corrections thereby allowing the possibility that defendant might be sentenced to a term of years

rather than natural life without parole. However, defendant conceded that other portions of the

statute were left intact and, therefore, the judge was still bound to sentence defendant to a term

of 20 to 40 years. The judge stated that, under defendant’s interpretation of the commutation

order, the Governor had delegated his clemency power to the judiciary to use its discretion

instead of imposing the sentence mandated by statute, and if that was the case then what the

Governor did was unconstitutional. The judge, therefore, concluded that defendant’s

interpretation was incorrect given the holding in Madigan. Accordingly, the judge found that the

only effect of the commutation order was to remove the possibility of a death sentence. The

judge indicated he had no discretion over defendant’s sentence and that he was required by law

to impose a sentence of natural life without parole.

       The defendant then requested a new presentence investigation contending it could be

helpful as to future placement of defendant by the Department of Corrections. The judge

questioned the relevance of the motion, but concluded that a presentence investigation was

consistent with the court’s past practice in natural life cases. The judge, however, reiterated that

the only sentence available was natural life.

       During defendant’s resentencing hearing on December 8, 2004, the judge indicated that

he had reviewed the new presentence investigation report and defendant’s sentencing submission.


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No witnesses were presented by either the State or the defense. In aggravation the State

included a stipulation that defendant was convicted in 1970 for the attempted murder and

aggravated battery of Michael Weaver. Defendant’s sentencing submission included mitigation

evidence previously presented at his post-conviction evidentiary hearing and clemency hearing.

Both the State and defense argued in aggravation and mitigation. The defendant also spoke to

the court regarding why certain mitigation evidence had been introduced. The judge noted that

defendant’s prison record included 31 nonviolent disciplinary infractions and 3 referrals to

isolation during his first year of confinement. There were additional disciplinary infractions

through the years. The judge also noted that the Illinois Supreme Court “eloquently

summarized” the substantial mitigation evidence. The record reflects a substantial amount of

mitigating evidence was presented during the resentencing proceeding.

       After considering the aggravation and mitigation, the judge imposed a sentence of two

concurrent terms of natural life imprisonment indicating that this sentence was mandated by law

because defendant was convicted of double murder. The judge further noted that even if he had

discretion as to the sentence, he would still sentence defendant to natural life imprisonment.

Defendant’s motion to reconsider sentence was denied on January 24, 2005. The judge again

indicated that even if he had discretion in sentencing, he would impose a sentence of natural life

imprisonment. This appeal followed.

                                           ANALYSIS

       Defendant raises the following four arguments challenging his sentence to natural life

imprisonment: (1) the court erred in finding that it had no discretion in sentencing defendant; (2)


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the court abused its discretion by failing to consider substantial mitigation evidence in violation

of the eighth amendment to the United States Constitution and article I, section 2, of the Illinois

Constitution; (3) the record reflects erroneous factual findings by the court regarding aggravation

evidence; and (4) the court imposed an unconstitutionally disparate sentence in violation of

article I, section 11, of the Illinois Constitution and the eighth and fourteenth amendments to the

United States Constitution. We address each argument in turn.

       I. CIRCUIT COURT CORRECTLY FOUND NO SENTENCING DISCRETION

       Defendant contends the circuit court erred when it concluded that it had no discretion to

impose a sentence other than natural life imprisonment for defendant’s double homicide

convictions. In support of that contention, defendant argues as follows:

              “The Commutation Order removed the 1982 finding that Mr.

              Thompkins was eligible for the death penalty, and, because it used

              permissive and discretionary language, the Order overrode Illinois

              Revised Statute 1980, chapter 38 Section 1005-8-1 (a)(1)c, which

              otherwise would have made natural life imprisonment mandatory

              for the double homicide conviction in this case.”

       While defendant’s resentencing hearing was pending, then-Governor George H. Ryan

issued a partial pardon to defendant and others facing the death penalty “by removing the

maximum sentence for these defendants in future sentencing hearings.” People ex rel. Madigan

v. Snyder, 208 Ill. 2d 457, 476 (2004). The pardons provided as follows:




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               “Sentence Commuted to a Sentence Other Than Death for the

               Crime of Murder, So that the Maximum Sentence that may be

               Imposed is Natural Life Imprisonment Without the Possibility of

               Parole or Mandatory Supervised Release.”

The Illinois Supreme Court in Snyder held these pardons to be valid and indicated as follows:

               “[T]he Governor’s constitutional authority to issue pardons after

               conviction is sufficiently broad to allow him to reduce the maximum

               sentence the defendant is facing. In such a situation, the Governor

               is exercising his power to prevent or mitigate punishment by

               pardoning the defendant from the full extent of the punishment

               allowed by law.” Snyder, 208 Ill. 2d at 477.

       We agree that, based on the language and intent of the above-quoted order, defendant

could never again be a candidate for the death penalty based on his double homicide convictions.

However, we disagree with defendant’s contention that because the commutation order used

permissive and discretionary language, the order “overrode” section 5-8-1(a)(1)(c) (Ill. Rev. Stat.

1981, ch. 38, par. 1005-8-1(a)(1)(c)), which makes natural life imprisonment mandatory for the

double homicide convictions in the instant case.

       The commutation order, which was the same order granted to other murder convicts

awaiting new sentencing, only removed the death penalty as an available sentence. Snyder, 208

Ill. 2d at 476. The commutation order provides that the “Maximum Sentence that may be

Imposed is Natural Life Imprisonment Without the Possibility of Parole or Mandatory Supervised


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Release.” Defendant, relying on the word “may,” argues that the sentencing judge has the

discretion to impose a term of years rather than natural life.

       There is no question that a governor of the State of Illinois has the authority to commute a

defendant’s sentence to a term of years under the statutory minimum; however, then-Governor

Ryan did not do so in the instant case. See Snyder, 208 Ill. 2d at 475-77. Rather, then-Governor

Ryan choose to remove the death penalty as a legal consequence of defendant’s crimes and

mitigated the defendant’s sentence to the only other possible legal consequence under the law for

a double homicide: natural life imprisonment. Ill. Rev. Stat. 1981, ch. 38, par. 5-8-1(a)(1)(c) (“if

the defendant *** is found guilty of murdering more than one victim, the court shall sentence the

defendant to a term of natural life imprisonment”).

       The substance, not the terminology, of a governor’s clemency order controls. Snyder, 208

Ill. 2d at 476-77. The substantive effect of the order entered in the instant case was to mitigate

the defendant’s sentence of death to a sentence of natural life imprisonment, not to commute his

potential sentence to an undetermined term. See People v. Collins, 351 Ill. App. 3d 959, 962

(2004). Then-Governor Ryan had the authority to commute defendant’s sentence to an

undetermined term, but chose not to do so.

       For the reasons previously discussed, we reject defendant’s argument that the sentencing

judge erred in finding that it had no discretion other than to sentence defendant to a term of

natural life imprisonment.

        II. CIRCUIT COURT PROPERLY CONSIDERED MITIGATION EVIDENCE

       Defendant contends the circuit court abused its discretion by failing to consider substantial


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mitigating evidence in violation of the due process clause and article I, section 2, of the Illinois

Constitution. In support of that contention, defendant argues that “the Circuit Court’s purported

consideration of the evidence in mitigation was necessarily a fiction because the Court held that it

had no option but to sentence Mr. Thompkins to a term of two concurrent natural life sentences.”

The State responds that it was not necessary for the trial court to hold a sentencing hearing.

        In People v. Collins, we stated that the clemency orders which we interpreted to be more

in the nature of limited pardons than sentencing commutations (Collins, 351 Ill. App. 3d at 961)

“did not require the circuit court to hold a sentencing hearing regarding the appropriate sentences

to be imposed, and the circuit court did not err in remanding the defendants to the Department of

Corrections to serve natural life sentences pursuant to then-Governor Ryan’s clemency orders.”

Collins, 351 Ill. App. 3d at 962; People v. Morgan, No. 1-05-4016, slip op. at 6 (August 20,

2007) (a capital defendant is not entitled to a new sentencing hearing after receiving a limited

pardon removing the death penalty as a legal consequence of his actions). However, in the instant

case, we are not called upon to determine whether a sentencing hearing should have been held.

The circuit court elected to conduct a sentencing hearing. Accordingly, the issue in the instant

case is whether during the sentencing hearing which was held did the judge give proper

consideration to defendant’s mitigation evidence.

        We are mindful that once the sentencing hearing was underway, the judge in the instant

case had both a statutory and constitutional duty to consider evidence in mitigation. People v.

Coleman, 168 Ill. 2d 509, 556-57 (1995); U.S. Const., amend. VIII; 730 ILCS 5/5-5-3.1(a)

(West 2006). The judge ordered a new presentence investigation report, reviewed it and allowed


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the State and defense to make any corrections to the report. The record reflects the judge stated

he reviewed the extensive mitigation evidence presented by defendant, which included mitigation

evidence that defendant has been a benefit to his community, his family, his friends, has a good

employment record, has been a model prisoner and is a man of faith. The record further reflects

that the judge considered defense counsel’s argument in mitigation.

       In support of his argument that the record demonstrates the judge ignored mitigation

evidence, defendant relies on People v. Markiewicz, 246 Ill. App. 3d 31, 55-56 (1993). We do

not find Markiewicz persuasive.

       In Markiewicz, the case was remanded for resentencing because the judge mistakenly

believed he could only consider statutory mitigation enumerated in section 5-5-3.1 of the Unified

Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.1(a)). Markiewicz, 246 Ill. App.

3d at 55-56. In the instant case, the judge was operating under no such misconception. Rather,

the judge properly considered mitigation evidence both statutory and nonstatutory. See People v.

Scott, 148 Ill. 2d 479, 560 (1992) (sentencing judge should consider all matters reflecting upon

defendant’s personality, propensities, purposes, tendencies and every aspect of his life relevant to

sentencing).

       After conducting the sentencing hearing, the judge correctly noted that the law required

him to impose a sentence of natural life for defendant’s double homicide convictions. See Ill.

Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c). He also made it clear at the sentencing hearing

and later in ruling on defendant’s motion to reconsider sentence that, even if he had the discretion

to impose a lesser sentence, he still would have imposed a sentence of natural life imprisonment.


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       We note the legislature has determined that a crime involving the murder of more than one

victim requires imposition of either the death penalty or a sentence of natural life, regardless of

defendant’s mitigation evidence. People ex rel. Daley v. Strayhorn, 119 Ill. 2d 331 (1988). The

mandatory sentence of natural life imprisonment has been held constitutional although it can be

regarded as precluding the consideration of mitigating or rehabilitating factors as provided in

Strayhorn:

               “[I]t is constitutionally permissible for the legislature to fix this

               mandatory minimum penalty where it has determined that no set of

               mitigating circumstances could allow a proper penalty of less than

               natural life for the crimes of two or more murders.” Strayhorn, 119

               Ill. 2d at 336. See also People v. Wages, 261 Ill. App. 3d 576, 588

               (1994).

       Based on our review of the record, for the reasons previously discussed, we reject

defendant’s argument that the trial court failed to properly consider defendant’s mitigation

evidence.

                   III. COURT'S FACTUAL FINDINGS NOT ERRONEOUS

       Defendant contends the court made “erroneous factual findings concerning the evidence in

aggravation, and as a result sentenced Mr. Thompkins’ based upon improper aggravating factors

in violation of the 14th amendment to the United States Constitution.” In support of that

contention, defendant argues that the trial court erred in characterizing the shootings of Michael

Weaver, Gerald Holton and Arthur Sheppard as similar because they were gang related, or related


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to organized crime.

       In 1970, defendant was the head of the Kingston Green Black P Stone Rangers. He was

the head of the gang from age 16 to age 23 or 24. Defendant and his fellow gang members

suspected Michael Weaver of informing the Markham police of gang activities. Defendant

brought Weaver to a field in Markham, kissed him on both cheeks, and shot him three or four

times. Weaver did not die, but was paralyzed. Regarding the murder of Arthur Sheppard and

Gerald Holton, while defendant was not the shooter, defendant played a prominent role in

planning the shooting murder of the two men. Accordingly, the judge’s characterization of the

crimes as similar was not erroneous.

       Moreover, if the court erred in its subjective characterization, such error was an

insignificant element of defendant’s sentence and was harmless in the context of defendant’s

fundamental right to liberty. People v. Bourke, 96 Ill. 2d 327, 333 (1983).

     IV. NATURAL LIFE SENTENCE IS NOT UNCONSTITUTIONALLY DISPARATE

       Defendant contends his sentence is unconstitutionally disparate with Ronnie Moore’s

sentence because he was less culpable in the murders of Holton and Sheppard and more amenable

to rehabilitation. Both defendant and Moore were sentenced to natural life imprisonment.

       Based on the evidence, we disagree with defendant’s characterization of his conduct. The

record does not reflect that Moore was the more culpable offender. Rather, defendant played a

prominent role in planning the double murders and actively participated in the crimes and their

concealment. People v. Thompkins, 161 Ill. 2d 148, 185-86 (1994) (Thompkins II).




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       The record further reflects that while defendant provided various factors in mitigation, he

also had a more serious criminal history than Moore. The defendant had been convicted in 1971

of aggravated battery and was sentenced to 15 to 20 years’ imprisonment, while Moore’s only

previous conviction was in 1972 for robbery, for which he was sentenced to five years to five

years and a day. Thompkins, 161 Ill. 2d at 186-87 (Thompkins II). Based on the record, we

reject defendant’s argument that his sentence to natural life imprisonment is unconstitutionally

disparate to Moore’s sentence to natural life imprisonment.

       For the reasons previously discussed, we affirm the judgment of the circuit court.

       Affirmed.

       O’BRIEN and GALLAGHER, JJ., concur.




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