                            No. 3--05--0793

                      Filed July 24, 2007.
                             IN THE

                   APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2007


THE PEOPLE OF THE STATE OF      )     Appeal from the Circuit Court
ILLINOIS,                       )     of the 10th Judicial Circuit,
                                )     Peoria County, Illinois
     Plaintiff-Appellee,        )
                                )
          v.                    )     No.     04--CF--613
                                )
MARTIZE SMOLLEY,                )
                                )     Honorable Scott Shore,
     Defendant-Appellant.       )     Judge, Presiding.


     JUSTICE SCHMIDT delivered the opinion of the court:


     At the conclusion of a bench trial, defendant, Martize

Smolley, was convicted in the circuit court of Peoria County of

two counts of felony murder in violation of section 9--1(a)(3) of

the Criminal Code of 1961    (720 ILCS 5/9--1(a)(3)(West 2004)) for

killing Kelly Houser and her daughter, Amy Allen.       Defendant was

also found guilty of unlawful possession of a firearm.      Pursuant

to section 5--8--1(a)(1)(c)(ii) of the Unified Code of

Corrections (the Code) (730 ILCS 5/5--8--1(a)(1)(c)(ii) (West

2004)), defendant received a mandatory sentence of natural life
in prison.    He appeals, claiming section 5--8--1(a)(1)(c)(ii) of

the Code is unconstitutional as applied to him.      Specifically,

defendant argues the sentence mandated by the Code violates the

proportionate penalties clause of the Illinois Constitution.      We

disagree and affirm his sentence.

                             BACKGROUND

     On June 14, 2004, Kelly Houser and her daughter, Amy Allen,

got into the car and left home with the intent to buy some ice

cream.    Houser would need some money to pay for the ice cream so

she drove to an ATM located in the 500 block of Northeast

Jefferson Street in Peoria, Illinois.

     On the same evening, defendant armed himself with a fully

loaded handgun and proceeded toward the same ATM.      With the

intent to rob someone at the ATM, defendant waited across the

street and watched until Houser's car approached the machine.

Defendant ran across the street.       As Houser withdrew $10 from the

ATM, defendant moved toward the car from the rear on the driver’s

side.    He removed the gun from his waistband and stuck it in the

driver’s-side front window of the car.      Thereafter, the defendant

fired a single shot.    The bullet entered Kelly Houser’s left

cheek, perforating her brain stem before exiting the back of her

head.    The bullet then entered the left side of Amy Allen’s head

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between her eye and her ear, lodging in the back of her brain.

Kelly Houser and her daughter both died as a result of gunshot

wounds to the head.

     The gun that killed Houser and Allen was recovered from

defendant’s bedroom; defendant ultimately confessed to the

murders.   Defendant acknowledged that he intended to rob Houser,

but claimed that he did not intend to fire the weapon.      Defendant

informed police that Houser began to drive away after he stuck

the gun in the window and movement from the car caused his hand

to be struck by the door frame.       This contact caused the weapon

to accidentally discharge.

     Following arguments by the parties, the court found

defendant guilty of two counts of felony first degree murder and

one count of unlawful possession of a firearm.      The court entered

not guilty verdicts on two first-degree murder counts that

charged defendant with knowingly discharging a handgun into a

motor vehicle occupied by the victims while knowing that such an

act created a strong probability of death or great bodily harm.

     The trial court ordered a presentence investigation report,

but noted that it ultimately had no discretion in sentencing

defendant due to the mandatory natural life sentence requirements

contained in the Code applicable to multiple convictions for

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murder.   At the sentencing hearing, the State argued that a

natural life sentence was appropriate and required by the Code.

Defense counsel argued that mitigating circumstances existed that

should be considered, most notably that the defendant’s juvenile

record contained only nonviolent burglaries and that the

defendant received good grades as he pursued an education while

detained in juvenile facilities.       Defense counsel also argued

that the defendant claimed not to intend to kill anyone while

committing the armed robbery.    The court imposed the term of

natural life imprisonment without the possibility of parole.

This appeal followed.

                             ANALYSIS

     Defendant raises a single issue on appeal: the

constitutionality of the mandatory natural life sentencing

statute (730 ILCS 5/5--8--1(a)(1)(c)(ii) (West 2004)) as it

applies to him.   We review questions concerning the

constitutionality of a statute de novo.       People v. Moss, 206 Ill.

2d 503, 795 N.E.2d 208 (2003).

     Section 5--8--1(a)(1)(c)(ii) of the Code states:

          "(a) Except as otherwise provided in the statute

     defining the offense, a sentence of imprisonment for a

     felony shall be a determinate sentence set by the court

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     under this Section, according to the following

     limitations:

          (1) for first degree murder

                                 ***

                (c) the court shall sentence the defendant to

          a term of natural life imprisonment when the death

          penalty is not imposed if the defendant

                                 ***

                      (ii) ***irrespective of the defendant’s

                      age at the time of the commission of the

                      offense, is found guilty of murdering

                      more than one victim[.]"   730 ILCS 5/5--

                      8--1(a)(1)(c)(ii) (West 2004).

     Defendant argues that this statute, as applied to him,

violates the proportionate penalties clause of the Illinois

Constitution.    It is axiomatic to note that the legislature has

discretion to prescribe penalties for defined offenses.       People

v. Taylor, 102 Ill. 2d 201, 464 N.E.2d 1059 (1984).    The

legislature’s discretion includes the power to prescribe

mandatory sentences, even if such sentences restrict the

judiciary’s discretion in imposing sentences.     Taylor, 102 Ill.

2d at 208.   However, the power to prescribe sentences is not

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absolute as the penalty must satisfy constitutional

constrictions.     People v. Davis, 177 Ill. 2d 495, 687 N.E.2d 24

(1997); People v. Morris, 136 Ill. 2d 157, 554 N.E.2d 235 (1990).

One such constitutional constriction that legislation must

satisfy is the proportional penalties clause of the Illinois

Constitution.    People v. Miller, 202 Ill. 2d 328, 781 N.E.2d 300

(2002).

     The proportional penalties clause of the Illinois

Constitution states that all "penalties shall be determined ***

according to the seriousness of the offense."    Ill. Const. 1970,

art. I, §11.    Courts of review should be reluctant to override

the judgment of the legislature with respect to criminal

penalties.     People v. Hamm, 149 Ill. 2d 201, 595 N.E.2d 540

(1992); People v. Gonzales, 25 Ill. 2d 235, 184 N.E.2d 833

(1962).   It is also true, however, that when defining crimes and

their penalties, the General Assembly must consider the

constitutional goals of restoring an offender to useful

citizenship and of providing a penalty according to the

seriousness of the offense.     Taylor, 102 Ill. 2d at 206.

     When faced with a challenge that a statute is

unconstitutionally disproportionate as applied to a given

defendant, our review begins with the presumption that the

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statute is constitutional.   Miller, 202 Ill. 2d at 335.      Because

of this presumption, the party challenging the statute bears the

burden of showing its invalidity.      People v. Davis, 177 Ill. 2d

495, 687 N.E.2d 24 (1997).   A statute may be deemed

unconstitutionally disproportionate as applied to a specific

defendant when "(1) the punishment for the offense is cruel,

degrading, or so wholly disproportionate to the offense as to

shock the moral sense of the community; (2) similar offenses are

compared and the conduct that creates a less serious threat to

the public health and safety is punished more harshly; or (3)

identical offenses are given different sentences."       Miller, 202

Ill. 2d at 338.

     Citing People v. Miller, 202 Ill. 2d 328, 781 N.E.2d 300

(2002), defendant argues that his natural life sentence, imposed

under section 5--8--1(a)(1)(c)(ii) of the Code, is

unconstitutionally disproportionate as applied to him.      Defendant

claims the sentence is cruel, degrading, and so wholly

disproportionate to the offense committed that it should shock

the moral sense of the community.      In Miller, our supreme court

found that the same section of the Code was unconstitutional as

applied to the Miller defendant.       Miller, 202 Ill. 2d at 341.

Miller involved a 15-year-old defendant who had "one minute to

                                   7
contemplate his decision to participate in the incident and

[stand] as a lookout during the shooting, but never handled [the]

gun."   Miller, 202 Ill. 2d at 341. The Miller defendant was

convicted of two counts of first degree murder (720 ILCS 5/9--

1(a)(1) (West 1996)) given that his participation in the crime

rendered him accountable for the murders.   See 720 ILCS 5/5--2(c)

(West 1996).   Although 15 years old and a juvenile at the time of

the incident, the Miller defendant was automatically transferred

to adult criminal court pursuant to section 5--4(6)(a) of the

Juvenile Court Act of 1987 (705 ILCS 405/5--4(6)(a) (West 1996)).

Miller, 202 Ill. 2d at 340.

     The Miller court's finding that the sentence, as applied to

the Miller defendant, was unconstitutionally disproportionate was

based upon the convergence of "these three statutes" (the

automatic transfer statute, the accountability statute, and the

mandatory sentencing statute), combined with the fact that the

Miller defendant was "the least culpable offender imaginable."

Miller, 202 Ill. 2d at 341.   Specifically, the court stated:

     "[T]he convergence of the Illinois transfer statute,

     the accountability statute, and the multiple-murder

     sentencing statute eliminates the court’s ability to

     consider any mitigating factors such as age or degree of

                                 8
     participation.   A life sentence without the possibility of

     parole implies that under any circumstances a juvenile

     defendant convicted solely by accountability is incorrigible

     and incapable of rehabilitation for the rest of his life."

     Miller, 202 Ill. 2d at 342-43.

     The holding set forth in Miller, regarding the convergence

of these three statutes, is fact specific.    The court noted that

its decision "does not imply that a sentence of life imprisonment

for a juvenile offender convicted under a theory of

accountability is never appropriate.   It is certainly possible to

contemplate a situation where a juvenile offender actively

participated in the planning of a crime resulting in the death of

two or more individuals, such that a sentence of natural life

imprisonment without the possibility of parole is appropriate."

Miller, 202 Ill. 2d at 341.

     The defendant herein argues that similarities between this

case and Miller necessitate a finding that his sentence is

unconstitutional as applied.   We disagree.   It is true that, like

the Miller defendant, this defendant was one month shy of his

sixteenth birthday at the time of this offense, was automatically

transferred to adult criminal court, and received a mandatory

natural life sentence under section 5--8--1(a)(1)(c)(ii) of the

                                 9
Code.    However, the similarities end there.   The differences

between this case and Miller, however, are significant.

     The Miller court emphasized the difference between a

juvenile who "actively participate[s]" in a crime that leads to

the death of two or more individuals and one, like Miller, who is

culpable for acts "completed by other persons."     Miller, 202 Ill.

2d at 341.    Defendant was the principal and sole actor in this

crime.    He planned the crime, took a loaded weapon to the crime,

waited across the street until vulnerable and unsuspecting

victims arrived at the ATM, and decided to point a fully-cocked,

loaded weapon into the victims' car.    His finger was obviously on

the trigger, since he claimed the weapon fired when the victims'

car pulled forward and the door post hit his hand.      He fired a

single shot that traveled through a mother’s head and into the

head of her daughter while they were merely trying to take $10

out of an ATM to buy ice cream on a warm summer evening.     Unlike

the defendant in Miller, defendant was not held accountable for

someone else’s actions.    He was held accountable for his own

actions.    Despite defendant’s urging, we decline to expand Miller

to situations in which a juvenile defendant is the principal and

only party criminally liable.     Our supreme courted focused on

the fact that the Miller defendant was "convicted solely by

                                 10
accountability."   Miller, 202 Ill. 2d at 343.   That is simply not

the situation with this defendant.

     Defendant argues that, pursuant to the mandatory life term

contained in the sentencing statute, "the court was unable to

consider the statutory mitigating factor" that he did not intend

to "kill these victims."   Defendant's argument is a continuation

of his comments to the trial court during the sentencing and

posttrial motion hearings.   During those hearings, defendant

argued that "some pretty good arguments in mitigation" were

available but for the mandatory life term.   Defendant noted that

the presentence investigation report indicates his juvenile

record contained only delinquency ajudications for nonviolent

burglaries.   He further noted that "while incarcerated" in

juvenile facilities, he received "an awful lot of A's and B's."

Defendant claims these facts coupled with his lack of intent to

kill anyone should have led the court to the conclusion that the

defendant was "a young man who is intelligent and otherwise ***

could have been a productive member of society."    Therefore,

defendant argues, his mandatory life sentence should shock our

conscience and be held unconstitutionally disproportionate to the

crime he committed since the trial court was precluded from

considering factors in mitigation.   We disagree.

                                11
     Again, we note that the legislature has the authority to

prescribe mandatory sentences that restrict the judiciary's

discretion and ability to consider mitigating factors.    Taylor,

102 Ill. 2d at 208.   Therefore, the mere fact that the trial

court lacked the authority to consider the facts contained in the

presentence investigation report does not, in and of itself,

render this sentence unconstitutionally disproportionate.

     As the defendant admits, prior to killing Kelly Houser and

Amy Allen, he committed multiple burglaries.   While released and

on juvenile probation after the first burglary, defendant

committed the offenses of theft and criminal trespass to a

building.    After his probation for those offenses terminated, he

committed his second burglary.

     Again, while released on juvenile probation, defendant

violated that probation by committing a criminal trespass to a

residence.   Following a period of confinement and home electronic

monitoring, defendant was again found in violation of his

probation and sentenced to the juvenile division of the Illinois

Department of Corrections.   It was during this confinement in a

juvenile facility that defendant received his A's and B's.

Further review of defendant's history of confinement reveals,

however, that he did more than just study while confined.

                                 12
     In addition to being cited for numerous incidents of

possession of contraband and threatening others, on October 20,

2004, a youth counselor at the Peoria County Juvenile Detention

Center overheard defendant and another detainee discussing an

escape plan.   Defendant talked about stabbing a staff person

during the escape.    He also talked about waiting to hatch the

plan until a female was working and then "dropping" her.

Defendant stated that he "would not stop hitting her 'til she was

dead."   While defendant was looking for something to cut himself

with to initiate his plan, staff intervened.

     Contrary to defendant's assertion, the presentence

investigation report hardly supports the conclusion that

defendant would use his time incarcerated to become a "productive

member of society."

     We also note that defendant was arrested on June 17, 2004,

three days after the murders.    The murder weapon and extra

ammunition were found under his mattress in his bedroom at 1608

West Butler Street.    Defendant undoubtedly had many opportunities

to dispose of the murder weapon before taking it to his bedroom

more than a mile from the murder scene.    (The Illinois River is

only three or four blocks away from the murder scene.)    His

actions in keeping the gun at home are at least consistent with

                                 13
an intent to use it again.   In summary, any mitigating factors

found in defendant's presentence report are far outweighed by

aggravating factors.   Therefore, even if the trial court had

discretion in sentencing, we could not say that the natural life

sentence was an abuse of discretion.

     The natural life sentence imposed on this defendant is

neither cruel, degrading, nor so wholly disproportionate to the

offense he committed as to shock the moral sense of the

community.   Therefore, we find that section 5--8--1(a)(1)(c)(ii)

of the Code (730 ILCS 5/5--8--1(a)(1)(c)(ii) (West 2004)) is not

unconstitutional as applied to this defendant and affirm the

natural life sentence imposed by the trial court.

                             CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

     Affirmed.

     LYTTON, P.J., and McDADE, J., concur.




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