                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Lauderdale, 2012 IL App (1st) 100939




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      VERNON LAUDERDALE, Defendant-Appellant.



District & No.               First District, Fifth Division
                             Docket No. 1-10-0939


Filed                        March 23, 2012
Rehearing denied             May 2, 2012
Held                         Defendant’s conviction for attempted first degree murder and his sentence
(Note: This syllabus         to 31 years’ imprisonment, including a 25-year enhancement for
constitutes no part of       personally discharging a firearm that caused great bodily harm to another
the opinion of the court     person, were upheld over his contentions that his counsel was ineffective
but has been prepared        in failing to ask that defendant be sentenced under section 8-4(c)(1)(E) of
by the Reporter of           the Unified Code of Corrections allowing him to be sentenced for a Class
Decisions for the            1 felony, rather than a Class X felony, if he proved he acted under a
convenience of the           sudden and intense passion resulting from serious provocation and that
reader.)
                             the firearm enhancement provision of the attempted murder statute
                             violated the proportionate penalties clause, since defendant’s retaliation
                             from the victim’s single punch to defendant’s jaw was out of proportion
                             to the victim’s conduct, especially when defendant shot the victim three
                             times at close range, and the challenge to the firearm enhancement
                             provision for attempted first degree murder has already been rejected by
                             the Illinois Supreme Court.


Decision Under               Appeal from the Circuit Court of Cook County, No. 08-CR-14331; the
Review                       Hon. Joseph M. Claps, Judge, presiding.
Judgment                    Affirmed.


Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and La Roi Williams, all of State
Appeal                      Appellate Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Miles
                            J. Keleher, and Kalia M. Coleman, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE McBRIDE delivered the judgment of the court, with opinion.
                            Presiding Justice Epstein and Justice Howse concurred in the judgment
                            and opinion.


                                              OPINION

¶1          Following a bench trial, defendant Vernon Lauderdale was found guilty of attempted first
        degree murder. At sentencing, the trial court imposed a term of 31 years’ imprisonment,
        which included an additional term of 25 years for personally discharging a firearm that
        proximately caused great bodily harm to another person. Defendant appeals, arguing that he
        received ineffective assistance of trial counsel because his attorney failed to request the trial
        court to sentence defendant under section 8-4(c)(1)(E) of the Criminal Code of 1961
        (Criminal Code) (720 ILCS 5/8-4(c)(1)(E) (West 2010)). Section 8-4(c)(1)(E) allows the trial
        court to sentence a defendant for a Class 1 felony, as opposed to a Class X felony, if at
        sentencing the defendant proves by a preponderance of the evidence that at the time of
        attempted murder, the defendant was acting under a sudden and intense passion resulting
        from serious provocation. Defendant also contends that the firearm enhancement provision
        of the attempted murder statute violates the proportionate penalties clause of the Illinois
        Constitution.
¶2          Defendant was charged by indictment with two counts of attempted first degree murder,
        one count of aggravated battery with a firearm, and two counts of unlawful use of a weapon.
        Prior to trial, the State elected to nol-pros the two counts of unlawful use of a weapon.
¶3          Defendant’s bench trial began in July 2009, and the following evidence was adduced.
¶4          Prentis Smith testified that he was a former member of the Mickey Cobra street gang. He
        joined in 1978 when he was eight years old and left the gang in 1996. While in the gang, he
        achieved the rank of a “prince.” He identified defendant in court as someone he had known
        for 20 years. Smith was best friends with defendant’s brother. Smith admitted that he was
        convicted of home invasion in 1998.
¶5          On the afternoon of July 20, 2008, Smith testified that he was “on Sedgwick in the
        Cabrini area.” He was in a parking lot with his 16-year-old cousin Deondre Daley and Ryan

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       Myles. Daley is also defendant’s nephew. During the afternoon, at around 2 or 3 p.m., Smith
       “had words” with a man called “Shooter.” Smith tried to punch Shooter, but missed and
       Shooter ran. Smith stated that the dispute was over selling drugs in the parking lot. As
       Shooter left the parking lot, Smith observed Shooter make a phone call, but did not know
       whom Shooter called.
¶6          Later, at approximately 10 p.m. that night, Smith testified that he was in the parking lot
       with Daley and Myles. Smith and Daley had remained in the parking lot continuously, but
       Myles had left and returned. He stated that there were “quite a few people in the parking lot.”
       Smith said it was dark outside, but there were lights on two buildings around the parking lot.
       Smith observed a confrontation between defendant and Daley. Defendant said that it was his
       parking lot. Smith asked if they moved to Dominick’s, was that defendant’s too, and
       defendant responded that it was. Smith stated that defendant pushed Daley to the ground.
       Smith then punched defendant in the jaw. Smith denied having any weapons on him.
¶7          After Smith punched him, defendant reached to his left side and pulled out a dark-colored
       .32-caliber revolver. Smith testified that he was standing approximately two feet from
       defendant, that they were “close enough to touch.” Smith stated that defendant aimed the gun
       at Smith’s chest and pulled the trigger two times, but the gun did not fire. Smith testified that
       he said to defendant, “somebody [gave] you a gun with no bullets.” Defendant then stepped
       back and aimed for Smith’s left leg and shot him in the left leg. Defendant then shot Smith
       in the right leg. Defendant aimed the gun at Smith’s chest and Smith turned to the side as
       defendant shot Smith in the shoulder. Smith stated that he “turned to the side to avoid getting
       shot in [his] heart.” Smith estimated that defendant was three feet away from him when the
       shooting occurred. Smith stated that all three shots were fired in less than five seconds. Smith
       testified that he stood there in shock. He said defendant “took off running” and “was
       hollering, ‘Cobra crazy.’ ”
¶8          Smith testified that he started to run toward Evergreen, but he blacked out and fell to the
       ground. He stated that Daley, Myles and Shawn Childs put him in the backseat of Smith’s
       car and took him to the Lincoln Park Hospital. He was later transferred to Illinois Masonic
       Hospital and treated for three gunshot wounds. He stated that he still has two bullets lodged
       in his body.
¶9          The next day, July 21, 2008, Smith spoke with the police at the hospital and he told them
       that defendant shot him. Smith was later shown a photo array and he identified defendant in
       the array. Later, in April 2009, Smith testified that he visited defendant in the Cook County
       jail with defendant’s mother and cousin. Smith stated that defendant apologized and said he
       did not mean to shoot Smith in the chest and was not trying to kill Smith. According to
       Smith, defendant said defendant would “take care of me [Smith] if I drop [sic] the charges.”
       Smith interpreted this to mean money. Smith had no further contact with defendant.
¶ 10        Detective Marc Leavitt testified that on July 20, 2008, he was assigned to investigate a
       shooting. He met with Smith at the hospital and Smith told him that defendant was the
       person who shot him. On July 21, 2008, the detective met with defendant in custody. He
       advised defendant of his Miranda rights and defendant agreed to speak with him and his
       partner. Detective Leavitt asked defendant if he belonged to a gang and defendant responded


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       that he used to be a Mickey Cobra.
¶ 11       Chandra Bell testified that on July 20, 2008, at around 9 p.m., she was in the area of 1300
       North Sedgwick in Chicago. She was in the area to visit her mother and to look for her two
       sons. She found her sons in the parking lot on Sedgwick. After she spoke with her sons, Bell
       talked to Smith for about five minutes. Bell stated that she had known Smith all of her life
       and had known defendant for 15 years. Bell observed defendant walk up to Smith, but she
       was unable to hear what they were saying and was not paying attention to them. Bell was
       walking toward her mother’s house when she heard shots fired. She said she ran and saw
       defendant running 25 to 30 feet away from her with something in his hand, but she was
       unable to see what it was. Bell also saw Smith being put into a car.
¶ 12       Following Bell’s testimony, the State rested. Ryan Myles testified for the defense. Myles
       admitted that at the time of his testimony, he was in custody for “a drug charge,” serving a
       sentence of four years in the Illinois Department of Corrections. Myles stated that he had
       known Smith for about two years and Smith is his godmother’s cousin. He said he knew
       defendant the same way. Myles has known Daley his whole life.
¶ 13       On July 20, 2008, Myles testified that he was at 1365 North Hudson, which he estimated
       is about a block and a half from 1310 North Sedgwick. Myles denied being in the parking
       lot with Smith that afternoon. He denied seeing an altercation between defendant and Smith.
       While at the Hudson address, Myles heard gunshots at around 10 p.m. Myles then began
       running in the direction of the shots. He stated that he went toward the gun shots because he
       wanted to check on Daley. Myles ran toward Evergreen and Sedgwick. He then saw Smith
       on the ground. He did not see anyone with Smith. Myles went to get Smith’s car and then he
       saw Daley and Shawn Childs “coming out.” They helped Myles put Smith in the car.
¶ 14       The defense then called Kizzy McRay to testify about her knowledge of defendant and
       Smith as well as her knowledge of the Mickey Cobra gang. The State objected to this line
       of questioning as McRay was not a member of the gang. The trial court allowed the State to
       voir dire McRay on her qualifications as an expert in Chicago gangs. McRay was allowed
       to testify.
¶ 15       McRay testified that she is defendant’s older sister. She has also known Smith for over
       20 years and he is a close friend. Smith was best friends with her deceased older brother,
       Leon Daley. McRay stated that Leon was a member of the Mickey Cobra gang and he held
       the rank of “supreme.” McRay learned about the gang signs displayed by the Mickey Cobras
       by being around her brother and his friends. She did not know of “any of [defendant’s]
       involvement in being a Mickey Cobra.”
¶ 16       McRay identified various gang signs displayed by Smith in three pictures presented by
       the defense. McRay testified that Smith was still a member of the Mickey Cobras. McRay
       then stated that Smith came to her house in June and July 2008 seeking to recruit her son into
       the gang. McRay admitted that she was not present at the time of the shooting and that she
       told the investigator from the public defender’s office that she did not believe defendant
       committed the shooting. Following McRay’s testimony, the defense rested.
¶ 17       In December 2009, after closing arguments, the trial court found defendant guilty of
       attempted first degree murder. The court also determined that defendant personally

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       discharged a firearm that proximately caused great bodily harm to Smith. In January 2010,
       defendant filed a “motion to reconsider or in the alternative for a new trial,” which the trial
       court denied.
¶ 18        At the February 2010 sentencing hearing, the trial court heard evidence in aggravation,
       including a victim impact statement from Smith and defendant’s prior convictions, one
       misdemeanor and four felonies. In mitigation, the defense presented the testimony of
       defendant’s mother and noted that defendant worked consistently and had committed no
       other offenses since 2002. After considering this evidence, the trial court imposed a sentence
       of 31 years’ imprisonment, which included a 25-year enhancement for personally discharging
       a firearm that proximately caused great bodily harm to Smith. While imposing the sentence,
       the trial court stated:
                “I’ve considered the factors in aggravation and mitigation. I’ve considered the
            arguments of counsel. I’ve considered the testimony of Mrs. Lauderdale. And I’ve
            considered greatly Mr. Vernon Lauderdale’s remarks.
                Mr. Lauderdale, I truly wish there was a crime called attempt second degree murder.
            I wish there was. I wish the legislature in this and other cases would have the confidence
            in the judicial system, in the judiciary, to give freedom to judges to make sentences
            specific for the crimes committed in consideration with the backgrounds of defendants
            and the facts of the cases, and the factors in mitigation and aggravation, To me, that
            would be true fairness.
                The legislature has saw fit [sic], and I’m not saying or suggesting the legislature is
            not justified, given the violence that happens each and everyday, to enhance sentences,
            but there are ways to enhance sentences that would give judges more freedom to carve
            out sentences that are more representative of the crime and the background of the
            offender.
                From a personal standpoint, I don’t believe that what they’ve done, this particular
            statute does that, but I am bound by the law. There is nothing I can do. Without the
            enhancement your sentence would not be the sentence that I am mandated to give you.
                I’ll also state for the record that given your background and the actions, 6 years would
            not be the minimum–it’s the minimum sentence. That’s not what I would sentence you
            to. But I also wouldn’t sentence you to what the minimum is required by law, which is
            31 years. But I am obligated to do that. I have no choice but to give you, at a minimum,
            that sentence.”
¶ 19        Defendant filed a motion to reconsider his sentence, which the trial court denied. This
       appeal followed.
¶ 20        On appeal, defendant argues that his trial counsel was ineffective for failing to argue that
       defendant was eligible for sentencing under section 8-4(c)(1)(E) of the Criminal Code of
       1961 (720 ILCS 5/8-4(c)(1)(E) (West 2010)). Specifically, defendant asserts that, pursuant
       to section 8-4(c)(1)(E), his trial attorney could have shown by a preponderance of the
       evidence that defendant was acting under a sudden and intense passion resulting from serious
       provocation at the time he shot Smith, and the trial court would have sentenced him for a
       nonenhanced Class 1 felony. The State maintains that defendant’s claim of ineffective

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       assistance of trial counsel lacks merit because defendant would be ineligible for sentencing
       under section 8-4(c)(1)(E) since the evidence would not support a finding that defendant was
       acting under a sudden and intense passion resulting from serious provocation.
¶ 21        Claims of ineffective assistance of counsel are resolved under the standard set forth in
       Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court delineated
       a two-part test to use when evaluating whether a defendant was denied the effective
       assistance of counsel in violation of the sixth amendment. Under Strickland, a defendant
       must demonstrate that counsel’s performance was deficient and that such deficient
       performance substantially prejudiced defendant. Strickland, 466 U.S. at 687. To demonstrate
       performance deficiency, a defendant must establish that counsel’s performance fell below
       an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163 (2001). In
       evaluating sufficient prejudice, “[t]he defendant must show that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different. A reasonable probability is a probability sufficient to undermine
       confidence in the outcome.” Strickland, 466 U.S. at 694. If a case may be disposed of on the
       ground of lack of sufficient prejudice, that course should be taken, and the court need not
       ever consider the quality of the attorney’s performance. Strickland, 466 U.S. at 697.
¶ 22        Section 8-4(c)(1)(E), which became effective January 1, 2010, provides:
            “[I]f the defendant proves by a preponderance of the evidence at sentencing that, at the
            time of the attempted murder, he or she was acting under a sudden and intense passion
            resulting from serious provocation by the individual whom the defendant endeavored to
            kill, or another, and, had the individual the defendant endeavored to kill died, the
            defendant would have negligently or accidentally caused that death, then the sentence for
            the attempted murder is the sentence for a Class 1 felony[.]” 720 ILCS 5/8-4(c)(1)(E)
            (West 2010).
¶ 23        This language is substantially similar to the statutory language for one of the grounds for
       second degree murder. See 720 ILCS 5/9-2(a)(1) (West 2010) (“at the time of the killing he
       or she is acting under a sudden and intense passion resulting from serious provocation by the
       individual killed or another whom the offender endeavors to kill, but he or she negligently
       or accidentally causes the death of the individual killed”). Since no cases have considered
       “sudden and intense passion resulting from serious provocation” under section 8-4(c)(1)(E),
       we turn to cases that have considered serious provocation in reducing first degree murder to
       second degree murder.
¶ 24        The Criminal Code does not outline what circumstances or categories of serious
       provocation would reduce first degree to second degree murder. People v. Sutton, 353 Ill.
       App. 3d 487, 491 (2004). However, the Illinois Supreme Court has recognized that “for
       purposes of reducing first degree murder based on serious provocation, the ‘ “only categories
       of serious provocation which have been recognized are: ‘substantial physical injury or
       assault, mutual quarrel or combat, illegal arrest, and adultery with the offender’s spouse; but
       not mere words or gestures or trespass to property.’ [Citation.]” ’ ” Sutton, 353 Ill. App. 3d
       at 491 (quoting People v. Chevalier, 131 Ill. 2d 66, 71 (1989), quoting People v. Crews, 38
       Ill. 2d 331, 335 (1967)).


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¶ 25       Here, there was no evidence at trial that defendant suffered a “substantial physical injury
       or assault” as a result of one punch to the jaw by Smith nor has defendant raised this basis
       on appeal. Instead, the parties focus on the mutual combat category of serious provocation.
¶ 26       “Mutual combat is a fight or struggle which both parties enter willingly or where two
       persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where
       death results from the combat.” People v. Austin, 133 Ill. 2d 118, 125 (1989). “In considering
       whether defendants have met the threshold burden of proving some evidence of mutual
       combat, it has been held that the alleged provocation on the part of the victim must cause the
       same passionate state of mind in an ordinary person under the same circumstances. A slight
       provocation is not enough, because the provocation must be proportionate to the manner in
       which the accused retaliated. The crime is murder when a defendant attacks a victim with
       violence out of all proportion to the provocation.” Austin, 133 Ill. 2d at 126-27. “There is no
       mutual combat where the manner in which the accused retaliates is out of all proportion to
       the provocation, particularly where homicide is committed with a deadly weapon.” Sutton,
       353 Ill. App. 3d at 496.
¶ 27       Defendant argues that the evidence supports his assertion that his attorney could have
       shown by a preponderance of the evidence that defendant was acting under a sudden and
       intense passion resulting from serious provocation when he shot Smith. Defendant notes
       Smith’s rank in the Mickey Cobras and the altercation with “Shooter” earlier in the day as
       support for defendant’s actions. However, there was no evidence that defendant had any
       knowledge of Smith’s interaction with “Shooter.” Defendant also argues that physically,
       Smith was much larger than defendant. Defendant bases this argument on Smith’s testimony
       describing defendant as approximately 5 feet 7 inches and weighing approximately 135 to
       140 pounds while Smith described himself as 6 feet 1 inch and 230 pounds. However,
       defendant’s arrest report, which is included in the record, states that defendant was 5 feet 9
       inches and weighed 265 pounds. Defendant has not argued mutual combat, but instead his
       argument is more in line with second degree murder that is not included in section 8-
       4(c)(1)(E), an unreasonable belief that the defendant believes the circumstances to be such
       that, if they existed, would justify or exonerate the killing. See 720 ILCS 5/9-2(a)(2) (West
       2010). Section 8-4(c)(1)(E) does not provide for a mitigated sentence based on unreasonable
       belief. See 720 ILCS 5/8-4(c)(1)(E) (West 2010).
¶ 28       The record refutes defendant’s claim of serious provocation. The evidence presented at
       trial showed that defendant approached Smith and Daley. Defendant pushed Daley to the
       ground and then Smith punched defendant in the jaw. In retaliation, defendant pulled out a
       gun and fired it at Smith five times. The gun did not fire the first two times defendant pulled
       the trigger. Smith asked defendant if someone gave him a gun with no bullets. Defendant
       then aimed the gun at Smith’s left leg and this time the gun fired. Defendant next shot Smith
       in the right leg. Defendant raised the gun and aimed at Smith’s chest. Smith turned to avoid
       being struck in the heart and was shot in the left shoulder. Defendant then fled the scene.
¶ 29       There was no mutual combat as the fight was not on equal terms. The evidence showed
       that only defendant was armed with a deadly weapon. Smith punched defendant one time.
       Defendant’s response of pulling out a gun and firing it multiple times, striking Smith three
       times, was “out of all proportion” to Smith’s provocation.

                                                -7-
¶ 30        In Austin, the defendant boarded a Chicago Transit Authority bus and got into a dispute
       with the bus driver over the fare. The evidence at trial was unclear if the dispute was because
       defendant tried to use a discounted student pass on a holiday or if the defendant sought to
       take a bus transfer without sufficient payment. Regardless, the defendant got into a physical
       fight with the bus driver. The two women exchanged blows for about 30 to 40 seconds. The
       defendant pulled a gun from her waistband and fired it into the floor of the bus. The bus
       driver was able to force the defendant off the bus, but while both were off the bus, the
       defendant shot and killed the bus driver. The defendant fled, but later returned to retrieve her
       bag from the bus and fled again. The defendant testified that she did not intend to shoot the
       bus driver. Austin, 133 Ill. 2d at 122-23.
¶ 31        The supreme court declined to find evidence of mutual combat because the bus driver did
       not enter the fight willingly and the fight was not on equal terms. Austin, 133 Ill. 2d at 125.
                 “The record in this case indicates that defendant shot and killed an unarmed victim
            who provoked defendant by speaking gruffly to her and striking her on the hand with a
            transfer punch. At the most, the victim provoked defendant by engaging in a ‘fairly even’
            fistfight for 30 to 40 seconds and forcing her off the bus. Defendant testified that she was
            afraid and wanted to cease the altercation with the bus driver. There is nothing in the
            record, however, to objectively indicate that defendant had reason to fear for her life.
            Shooting the driver was an act completely out of proportion to the provocation.
            Therefore, mutual combat cannot apply.” Austin, 133 Ill. 2d at 127.
¶ 32        In Sutton, the defendant contended on appeal that his trial counsel was ineffective for
       failing to request an instruction on second degree murder based on mutual combat. In that
       case, the defendant and the victim had been in a romantic relationship. The defendant went
       to see the victim at her mother’s house and they began to argue. During the argument, the
       victim told the defendant that he was not the father of her son. The victim picked up a roller
       skate and the defendant picked up a knife. In a statement, the defendant stated that he knew
       the victim would not hit him with the skate, but at trial, he testified that she hit him with the
       skate. The defendant then stabbed the victim in the side. They continued to struggle as they
       moved to the bedroom, where the defendant continued to stab the victim. Sutton, 353 Ill.
       App. 3d at 489.
¶ 33        The reviewing court found that the record did not support the defendant’s argument that
       his attorney should have requested a mutual combat instruction. The contact between the
       defendant and the victim was not on equal terms and the defendant’s response was out of all
       proportion. Sutton, 353 Ill. App. 3d at 496.
            “Defendant responded to allegedly being hit by the victim with a roller skate by stabbing
            the victim 23 times, and 9 of those stab wounds were to her back. The record reflects that
            the manner in which the defendant retaliated was completely out of all proportion to the
            words and contact made by the victim. Defendant admitted on cross-examination that he
            knew the victim would not kill him or put him in the hospital by striking him with the
            roller skate. If defendant and victim had mutually engaged in combat, defendant
            retaliated out of all proportion to the victim’s conduct, negating a mutual combat
            instruction.” Sutton, 353 Ill. App. 3d at 496.


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¶ 34       In the instant case, the manner in which defendant retaliated from a single punch to the
       jaw was completely out of all proportion to Smith’s conduct and belies defendant’s argument
       that he acted out of serious and intense passion from serious provocation. There was no
       mutual combat between defendant and Smith when Smith struck defendant once and
       defendant responded by pulling out a firearm and shooting Smith multiple times. The
       evidence does not support a finding that defendant acted under a sudden and intense passion
       resulting from serious provocation. Thus, section 8-4(c)(1)(E) was not applicable to
       defendant’s conduct. Since defendant could not have been sentenced under section 8-
       4(c)(1)(E), defendant cannot show how he was prejudiced by his attorney’s decision not to
       argue for its application. While the trial court’s comments at sentencing indicate a desire for
       more discretion in the sentence to be imposed on defendant, the evidence at trial does not
       support a finding that defendant acted “under a sudden and intense passion resulting from
       serious provocation.” Defendant cannot show that a reasonable probability exists that the
       result of the proceeding would have been different had counsel referenced section 8-
       4(c)(1)(E) because this section does not apply under the facts of this case. Accordingly, we
       conclude that defendant’s trial counsel was not ineffective.
¶ 35       Defendant further contends that his trial counsel’s “concession” that defendant was
       subject to the 25-year firearm enhancement provision was objectively unreasonable.
       However, defendant makes no argument as to section 8-4(c)(1)(D), which provides for an
       additional term of 25 years to life when the defendant personally discharged a firearm that
       caused great bodily harm during an attempt to commit first degree murder. 720 ILCS 5/8-
       4(c)(1)(D) (West 2010). Rather, defendant’s argument solely related to section 8-4(c)(1)(E)
       by arguing that the 25-year enhancement is inapplicable under that section. Since we have
       already determined that defendant could not have been sentenced under section 8-4(c)(1)(E),
       we need not consider this argument.
¶ 36       Finally, defendant argues that the firearm sentence enhancement provision, section 8-
       4(c)(1)(D), is unconstitutionally disproportionate as applied to him. Defendant received the
       minimum sentence possible for attempted first degree murder, a Class X felony, subject to
       the firearm sentence enhancement, a 6-year sentence plus the 25-year enhancement. 730
       ILCS 5/5-4.5-25(a) (West 2010) (Class X felony has a sentencing range of 6 to 30 years); 720
       ILCS 5/8-4(c)(1)(D) (West 2010). Specifically, defendant contends that the minimum
       sentence of 31 years that was imposed in this case is disproportionate because if he had killed
       Smith, and it was determined that he acted under a sudden and intense passion resulting from
       a serious provocation, then the maximum sentence he could have received was 20 years. See
       730 ILCS 5/5-4.5-30(a) (West 2010) (second degree murder is a Class 1 felony with a
       sentencing range of not less than 4 years and not more than 20 years). Defendant contends
       that his sentence with the firearm enhancement is so wholly disproportionate to the offense
       committed as to shock the moral sense of the community because it failed to account for
       mitigating circumstances. See Ill. Const. 1970, art. I, § 11; People v. Miller, 202 Ill. 2d 328,
       339 (2002).
¶ 37       The State initially responds that defendant lacks standing to raise this claim because
       defendant was convicted of attempted first degree murder, not second degree murder. “The
       general rule is that courts will not consider the validity of a statutory provision unless the

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       person challenging the provision is directly affected by it or the unconstitutional feature is
       so pervasive as to render the entire statute invalid.” People v. Morgan, 203 Ill. 2d 470, 482
       (2003). “In either case, a party has standing to bring a constitutional challenge only if the
       party is able to show himself to be within the class aggrieved by the alleged
       unconstitutionality.” Morgan, 203 Ill. 2d at 482. Defendant has challenged the
       constitutionality of section 8-4(c)(1)(D) as violating the proportionate penalties clause of the
       constitution. Defendant did receive an additional term of 25 years pursuant to section 8-
       4(c)(1)(D), and therefore, he is within the aggrieved class to challenge the statute and does
       not lack standing.
¶ 38       We review the constitutionality of a statute as a matter of law, subject to de novo review.
       People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005). All statutes carry a strong presumption of
       constitutionality, and to overcome this presumption, the party challenging the statute must
       clearly establish that the statute violates the constitution. Sharpe, 216 Ill. 2d at 487. “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.” Sharpe, 216 Ill. 2d at 487. “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.
¶ 39       The proportionate penalties clause of the Illinois Constitution declares that “[a]ll
       penalties shall be determined *** according to the seriousness of the offense.” Ill. Const.
       1970, art. I, § 11. In Sharpe, the Illinois Supreme Court held that a defendant may raise two
       types of proportionate penalties challenges: (1) a penalty violates the proportionate penalties
       clause if it is cruel, degrading, or so wholly disproportionate to the offense committed as to
       shock the moral sense of the community; or (2) the proportionate penalties clause is violated
       where offenses with identical elements are given different sentences. Sharpe, 216 Ill. 2d at
       521.
¶ 40       In the present case, defendant is challenging section 8-4(c)(1)(D) under the first type of
       challenge, that his sentence for attempted first degree murder with the 25-year firearm
       enhancement is so wholly disproportionate as to shock the moral sense of the community
       because the enhancement applies even when mitigating circumstances are present, such that
       the penalty for the attempt exceeds the sentencing range for the actual offense. Defendant
       asserts that his sentence shocks the moral sense of the community because his 31-year
       sentence for attempted first degree murder is more severe than the sentence of 20 years he
       would have received for second degree murder if he had killed Smith. However, the flaw in
       defendant’s argument is that the offense attempted was first degree murder, not second
       degree murder. As we have already concluded, no mitigating circumstances were present
       because the evidence in this case does not support a finding that defendant acted under a
       sudden and intense passion resulting from serious provocation. If defendant had killed Smith,
       defendant would have been charged with first degree murder. Accordingly, defendant’s
       argument fails.
¶ 41       Further, the supreme court has already concluded that firearm enhancement provisions
       for attempted first degree murder do not shock the moral sense of the community. Morgan,

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       203 Ill. 2d at 488. The Morgan court found:
           “We further acknowledge that the legislative purpose for enacting Public Act 91-404 [the
           act codifying section 8-4(c)(1)(D)] is the deterrence of the use of firearms in the
           commission of offenses. The presence of firearms during the commission of an offense
           always poses an extreme danger, not only to intended victims, but also to innocent
           bystanders. Thus, we will not second-guess the legislature’s determination that the
           protection of society necessitates the imposition of severe penalties whenever a firearm
           is used in the course of an offense. [Citation.] Thus, we cannot say that, where mitigating
           circumstances are not present, it would be cruel, degrading or so wholly disproportionate
           to the offense committed to subject a defendant who commits the offense of attempted
           first degree murder to mandatory add-on sentences of 15 years, 20 years or 25 years to
           life, depending on whether a firearm is present, discharged or the cause of bodily injury.
           Nor would the imposition of these penalties run counter to the general sentencing
           directive that ‘the penalty for committing an attempt may not exceed the maximum
           penalty for the offense attempted.’ The penalty for first degree murder is a term of
           imprisonment between 20 and 60 years (730 ILCS 5/5-8-1(a)(1)(a) (West 2000)), which
           must be enhanced by the addition of 15 years, 20 years, or 25 years to life, depending on
           whether the defendant, in committing the offense, was in the possession of a firearm,
           discharged a firearm, or caused bodily injury or death as a result of the use of a firearm
           (730 ILCS 5/5-8-1(a)(1)(d) (West 2000)). We conclude, then, that the mandatory
           enhanced sentencing scheme added to the offense of attempted first degree murder does
           not make the penalty for committing an attempt exceed the maximum penalty for the
           offense attempted and, therefore, the penalty is not inherently unconstitutional.” Morgan,
           203 Ill. 2d at 488-89.
¶ 42       The supreme court in Sharpe overruled part of the decision in Morgan which had
       considered the firearm enhancement provisions under the cross-comparison analysis for
       proportionate penalties. Sharpe, 216 Ill. 2d at 519. While the Sharpe court abolished the
       cross-comparison analysis used in Morgan, later in the opinion, the court recognized that it
       had “already held in Morgan that it is neither cruel nor degrading, nor would it shock the
       moral sense of the community, to apply the 15/20/25-to-life enhancements to attempted first
       degree murder.” (Emphasis omitted.) Sharpe, 216 Ill. 2d at 524. The Sharpe court, in
       considering the firearm enhancements for first degree murder, then concluded that “it would
       not shock the conscience of the community to learn that the legislature has determined that
       an additional penalty ought to be imposed when murder is committed with a weapon that not
       only enhances the perpetrator’s ability to kill the intended victim, but also increases the risk
       that grievous harm or death will be inflicted upon bystanders.” Sharpe, 216 Ill. 2d at 525.
       Since the supreme court has already rejected the proportionate penalties challenge to the
       firearm enhancement provisions for attempted first degree murder raised by defendant,
       defendant’s constitutional challenge must fail.
¶ 43       Based on the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 44      Affirmed.


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