Such legislation will not be nullified by courts unless it violates a constitutionally assured right. ( People ex rel. Carey v. Bentivenga (1981), 83 Ill.2d 537, 542, 416 N.E.2d 259.) The appellate court in People v. Gomez (1983), 120 Ill. App.3d 545, 458 N.E.2d 565, has already rejected an equal protection challenge to the sentencing provision for residential burglary as compared to burglary. ( 120 Ill. App.3d 545, 548-50, 458 N.E.2d 565.)
We have noted that the legislature has broad latitude to make changes in the penal code which address the community's concerns with lawless behavior. See id. at 596, 144 Cal.Rptr. at 506 (mandatory minimum ninety-day sentence for use of heroin was not " so disproportionate as to shock the conscience and offend fundamental notions of human dignity") (emphasis in original); People v. Gomez, 120 Ill. App.3d 545, 548, 458 N.E.2d 565, 567 (1983) (mandatory minimum four years incarceration for residential burglary not disproportionate under state constitution where legislation would not shock the moral sense of the community); Norris v. State, 271 Ind. 568, 575-76, 394 N.E.2d 144, 150 (1979) (mandatory life sentence for "habitual criminal" not grossly out of proportion to the severity of the crime). The dissent contends that minimum sentencing standards are inconsistent with Vermont's tradition of evaluating punishment for proportionality with the crime, referring to the Council of Censors which prevented such eighteenth-century atrocities as mutilation of the convict.
As the supreme court recently observed in People v. Bales (1985), 108 Ill.2d 182, residential burglary is classified as a more serious type of burglary than that of nonresidential burglary because residential burglary involves a violation of the sanctity and privacy of the home and inherently poses a high risk of bodily harm to its occupants. ( People v. Bales (1985), 108 Ill.2d 182, 193; see also People v. Gomez (1983), 120 Ill. App.3d 545, 549, 458 N.E.2d 565.) It is obvious then that as the offense of residential burglary threatens serious danger to its occupants, the threat of harm is that much more enhanced when the occupants are elderly, young or handicapped. As the State correctly points out, the State need not prove that the defendants had knowledge of the occupants' presence at the time of the illegal entry, as the potential for serious harm, physical and psychological, is present whenever someone unlawfully enters the residence of another.
As the State points out, the threat of harm is greater in this case because it involved the entry into a residence. As we held in People v. Gomez (1983), 120 Ill. App.3d 545, 458 N.E.2d 565, there was a rational basis for a distinction between residential and nonresidential burglary, because in a residential burglary "there is a considerably greater chance of injury and danger to persons in the home context than in the burglary of a place of business." ( 120 Ill. App.3d 545, 549, 458 N.E.2d 565, 568.)
This court stated that there was a rational basis for the classification because "residential burglary contains more possibility for danger and serious harm than that of places not used as dwellings." ( Bales, 108 Ill.2d at 193, quoting People v. Gomez (1983), 120 Ill. App.3d 545, 549.) Similarly, in this case the legislature could have rationally concluded that the unlawful use of weapons on school grounds poses a greater chance of injury and danger to persons in the school environment than elsewhere.
(See Remarks at third reading of S.B. 0214, at 61, Pub. Act 82-238, June 17, 1981.) As was recognized by the appellate court in People v. Gomez (1983), 120 Ill. App.3d 545, 549, "residential burglary contains more possibility for danger and serious harm than that of places not used as dwellings. There is a considerably greater chance of injury and danger to persons in the home context than in the burglary of a place of business.
In fact, the supreme court has long held that residential burglary classifies as a forcible felony because " 'residential burglary contains more possibility for danger and serious harm than that of places not used as dwellings. There is a considerably greater chance of injury and danger to persons in the home context than the burglary of a place of business.' " People v. Bales, 108 Ill. 2d 182, 193 (1985) (citing People v. Gomez, 120 Ill. App. 3d 545, 549 (1983). Second, the statute is designed to hold juveniles accountable for committing forcible felonies by imposing a five-year minimum term of probation.
Time and again, the courts have supported the legislature's determination that certain crimes require mandatory minimum sentences. ( People v. Gomez (1983), 120 Ill. App.3d 545, 458 N.E.2d 565 (residential burglary); People v. Kerans (1982), 103 Ill. App.3d 522, 431 N.E.2d 726 (armed violence); People v. James (1976), 38 Ill. App.3d 594, 348 N.E.2d 295 (unlawful delivery of 30 grams or more of LSD); People v. Koeppen (1974), 21 Ill. App.3d 478, 315 N.E.2d 679 (murder).) To conclude, we find without merit the defendant's position that the instant progressive sentencing scheme and mandatory minimum sentencing provision are unconstitutional.
( Solem v. Helm (1983), 463 U.S. 277, 77 L.Ed.2d 637, 103 S.Ct. 3001.) This court, in People v. Gomez (1983), 120 Ill. App.3d 545, 548, 458 N.E.2d 565, responded to the defendant's eighth amendment challenge by stating that: "[W]e would not conclude that [a] mandatory minimum [sentence] of four years for the offense of residential burglary is either cruel, degrading or wholly disproportionate to the offense as to shock the moral sense of the community. * * * [T]he potential for serious damage, both physical and psychological, is present whenever someone unlawfully enters the residence of another.
It should be first noted that Clay raises this argument for the first time on appeal, and that the failure to present a constitutional issue to the trial court generally results in a waiver thereof for purposes of review. ( People v. Gomez (1983), 120 Ill. App.3d 545, 458 N.E.2d 565.) However, we will consider the argument and, in doing so, we note that the test for determining the constitutionality of a criminal penalty is whether it is cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.