Docket No. 104029.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
RICHARD GANCARZ, Appellee.
Opinion filed April 3, 2008.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Burke concurred in the judgment and opinion.
OPINION
The issue in this case is whether the trial court violated the due
process rights of defendant Richard Gancarz by failing to advise him
of his option to be sentenced under the reckless homicide statute as
it existed at the time of the offense (720 ILCS 5/9–3(a) (West 2000))
or under the reckless homicide statute as it existed at the time he was
sentenced (720 ILCS 5/9–3(a) (West 2004)).
Defendant was charged by an indictment with several counts of
reckless homicide (720 ILCS 5/9–3(a) (West 2000)), two counts of
aggravated driving under the influence (DUI) (625 ILCS
5/11–501(a)(4), (d)(1)(C) (West 2000)), and driving with a suspended
license (625 ILCS 5/6–303(a) (West 2000)). These charges arose
from a collision of defendant’s tractor-semitrailer with a car driven by
Aric Wooley in a busy intersection on June 16, 2000. The defendant
was under the influence of cannabis and Wooley died as a result of
injuries he received in the collision.
After a bench trial in the circuit court of Du Page County,
defendant was convicted of reckless homicide, aggravated driving
under the influence (DUI), and driving on a suspended license.
Following the sentencing hearing on December 19, 2003, the trial
court merged the DUI charge with the reckless homicide charge and
sentenced defendant under the statutes in effect at the time of the
offense to a 14-year prison term for reckless homicide with a
concurrent 3-year term for driving on a suspended license.
The appellate court affirmed the defendant’s convictions but
vacated the 14-year sentence for reckless homicide because defendant
was denied due process when he was not informed by the trial court
of his right to elect sentencing under the reckless homicide statute as
it existed at the time of the offense or as it existed at the time of his
sentencing; it remanded the cause to the trial court for sentencing
under the aggravated DUI statute as it existed at the time of the
offense; and it affirmed the remainder of the judgment. 369 Ill. App.
3d 154. Aggravated DUI, as it existed at the time of the crime, and
under which defendant was also charged and convicted, was
punishable by an enhanced sentence of 1 to 12 years. 625 ILCS
5/11–501(a)(4), (d)(1)(C), (d)(2) (West 2000). We granted the State’s
petition for leave to appeal. 210 Ill. 2d R. 315. For the reasons that
follow, the judgment of the appellate court is affirmed in part and
reversed in part, and the judgment of the trial court is affirmed.
BACKGROUND
At the time of the offense on June 16, 2000, section 9–3(a) of the
Criminal Code of 1961 provided that reckless homicide is committed
by one who unintentionally causes the death of another through
operation of a motor vehicle while engaging in acts likely to cause
death or great bodily harm and performing those acts recklessly. 720
ILCS 5/9–3(a) (West 2000); see People v. Sienkiewicz, 208 Ill. 2d 1
(2003); People v. Wilson, 143 Ill. 2d 236 (1991). Section 9–3(d)(2)
classified reckless homicide as a Class 3 felony (720 ILCS
5/9–3(d)(2) (West 2000)), punishable by two to five years’
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imprisonment (see 730 ILCS 5/5–8–1(a)(6) (West 2000)). In addition
to this general classification of reckless homicide as a Class 3 felony,
section 9–3(e) provided, in pertinent part, as follows:
“[I]n cases involving reckless homicide in which the
defendant was determined to have been under the influence of
alcohol or any other drug or drugs as an element of the
offense, or in cases in which the defendant is proven beyond
a reasonable doubt to have been under the influence of
alcohol or any other drug or drugs, the penalty shall be a Class
2 felony, for which a person, if sentenced to a term of
imprisonment, shall be sentenced to a term of not less than 3
years and not more than 14 years.” 720 ILCS 5/9–3(e) (West
2000).
The General Assembly later enacted Public Act 93–213 with an
effective date of July 18, 2003, which removed parts of the reckless
homicide statute and added and amended parts of the aggravated
driving under the influence statute. Pub. Act 93–213, §§5, 7, eff. July
18, 2003. This public act removed subsections 9–3(b), 9–3(c), 9–3(e),
and 9–3(e–5) from the reckless homicide statute, each of which
pertained to alcohol or any other drug. The act also added and
amended section 11–501(d)(1) of the Vehicle Code (625 ILCS
5/11–501(d)(1) (West 2004)), which defines aggravated DUI. The act
added section 11–501(d)(1)(F), which provides, in pertinent part:
“(d) (1) Every person convicted of committing a violation
of this Section shall be guilty of aggravated driving under the
influence of alcohol, other drug or drugs, or intoxicating
compound or compounds, or any combination thereof if:
***
(F) the person, in committing a [DUI] violation ***
was involved in a motor vehicle *** accident that resulted
in the death of another person, when the violation ***
was a proximate cause of the death.” 625 ILCS
5/11–501(d)(1)(F) (West 2004).
Public Act 93–213 also amended section 11–501(d)(1)(2) to
provide:
“Aggravated driving under the influence of alcohol, other
drug or drugs, or intoxicating compound or compounds, or
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any combination thereof as defined in subparagraph (F) of
paragraph (1) of this subsection (d) is a Class 2 felony, for
which the defendant, if sentenced to a term of imprisonment,
shall be sentenced to *** a term of imprisonment of not less
than 3 years and not more than 14 years if the violation
resulted in the death of one person ***.” 625 ILCS
5/11–501(d)(2)) (West 2004).
The practical effect of Public Act 93–213 was to simultaneously
remove section 9–3(e) from the reckless homicide statute and add
similar language to the aggravated DUI statute, including the sentence
of not less than 3 and not more than 14 years’ imprisonment. After
the removal of section 9–3(e), the reckless homicide statute remained
a Class 3 felony punishable by two to five years’ imprisonment. 720
ILCS 5/9–3(d)(2) (West 2000).
STANDARD OF REVIEW
Because the facts of this case are not in dispute, the question is a
legal one and our review is de novo. People v. Bracey, 213 Ill. 2d 265,
270 (2004).
ANALYSIS
There is no dispute that defendant was not admonished by the trial
court of a right to choose to be sentenced under the reckless homicide
statute as it existed on the date of the offense or as that statute existed
on the date of his sentencing. Where the defendant has a right to make
such an election, we have held that in the absence of a showing that
he was advised of his right to elect under which statute he should be
sentenced, and an express waiver of that right, the defendant is denied
due process of law. People v. Hollins, 51 Ill. 2d 68 (1972).
Defendant argues that he has a right to choose to be sentenced
under the reckless homicide statute as it existed on the date of the
offense or as that statute existed on the date of his sentencing, and he
relies on the second sentence of section 4 of the Statute on Statutes (5
ILCS 70/4 (West 2004)), which provides:
“If any penalty, forfeiture or punishment be mitigated by any
provisions of a new law, such provision may, by the consent
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of the party affected, be applied to any judgment pronounced
after the new law takes effect.”
Defendant contends that he was charged with and convicted of
reckless homicide as defined in section 9–3(a). At the time the
offense was committed, he could have been sentenced under section
9–3(e) as a Class 2 felon and sentenced to 3 to 14 years’
imprisonment, rather than a Class 3 felon under section 9–3(d);
however, at the time he was sentenced, the penalty provision of
section 9–3(e) had been removed from the statute. Nothing in the
remaining penalty provision, set forth in section 9–3(d), precluded the
judge from sentencing him to two to five years’ imprisonment as a
Class 3 felon for having committed the crime for which he was
convicted, namely, reckless homicide. Thus, the 2003 amendment did
not change the nature of reckless homicide, nor did it make a
substantive change to any element of the offense. It only removed an
enhanced-sentencing provision.
In support of this argument, defendant places great reliance on
People v. Jackson, 99 Ill. 2d 476 (1984). In Jackson the defendant
committed theft by taking property valued at $251.98. At the time of
the offense, the theft statute penalized the taking of property worth
more than $150 as a felony. Before sentencing, an amendment to the
theft statute became effective, which raised the felony demarcation
value of property to $300. On appeal, defendant sought to be
resentenced as a misdemeanant under the theft statute as amended.
In Jackson defendant argued that the amendment applied only to
sentencing, i.e., mitigation of punishment. The State argued the value
of the property taken is an element of the crime, and thus the effect of
retroactive application would be to repeal the prior law, a result
expressly forbidden by the first and third sentences of section 4 of the
Statute on Statutes which provide:
“No new law shall be construed to repeal a former law
*** as to any offense committed against the former law, or as
to any act done, any *** punishment incurred *** or in any
way whatsoever to affect any such offense or act so
committed or done *** or punishment so incurred *** before
the new law takes effect, save only that the proceedings
thereafter shall conform, so far as practicable, to the laws in
force at the time of such proceeding. *** This section shall
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extend to all repeals *** whether the repeal is in the act
making any new provision upon the same subject or in any
other act.” 5 ILCS 70/4 (West 2004).
The Jackson court then discussed and analyzed a number of
appellate court cases which reached conflicting results and which are
cited by the State and the defendant in the case now before us. That
court held that the amendment to the theft statute before it affected
sentencing only and that, even with retroactive application, the
defendant could still be convicted of theft. People v. Jackson, 99 Ill.
2d at 480-81. In short, the amendment mitigated the sentence only; it
did not make a substantive change, and the defendant could consent
to the application of the new law.
The State argues, however, that Public Act 93–213 made
substantive changes to the reckless homicide statue. This court has
held that the first and third sentences of section 4 of the Statute on
Statutes forbids the retroactive application of substantive changes to
statutes. People v. Glisson, 202 Ill. 2d 499 (2002); People v.
Bilderback, 9 Ill. 2d 175 (1956). Thus, where the newly enacted
statute changes the substance of an existing law, rather than merely
mitigating the punishment, a defendant cannot take advantage of the
mitigation of the punishment in the new law. People v. Glisson, 202
Ill. 2d 499 (2002); People v. Bilderback, 9 Ill. 2d 175 (1956); see also
People v. Land, 178 Ill. App. 3d 251 (1988); People v. Fisher, 135 Ill.
App. 3d 502 (1985).
The first two appellate court cases to consider the same issue and
the same statutes, as those involved in this case, are People v. Malin,
359 Ill. App 3d 257 (2005), and the case now before us. Both the
Malin and the appellate court below stated that due to the change in
the reckless homicide statute by Public Act 93–213, defendant had a
choice to be sentenced under either the law in effect at the time the
offense was committed or that in effect at the time of sentencing,
citing People v. Hollins, 51 Ill. 2d 68 (1972).
Neither Malin nor the court below discussed or examined
whether the “change” in the reckless homicide statute was a
substantive change, a procedural change or a mitigation of sentence.
The Hollins case involved a sentencing procedure in Illinois which
changed from determinate to indeterminate and then back to
determinate sentencing. See People v. Johnson, 23 Ill. 2d 465 (1961);
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People v. James, 46 Ill. 2d 71 (1970). This court explained the
distinction between a substantive change and a procedural change
under section 4 of the Statute on Statutes in People v. Glisson, 202 Ill.
2d 499, 506-07 (2002).
Ultimately, the Malin court held that Public Act 93–213 replaced
the reckless homicide statute, when multiple deaths and DUI were at
issue, with amendments to the aggravated DUI statute. The court
found that defendant’s conduct was always subject to the same
punishment, albeit the charges subjecting him to that punishment had
changed. Thus, the defendant did not have any real choice in
determining which statutory scheme to be sentenced under because
he was always subject to being sentenced as a Class 2 felon. People
v. Malin, 359 Ill. App. 3d at 263. The court affirmed defendant’s
enhanced sentence under the reckless homicide statute.
The court below declined to follow the result of Malin. It
ultimately held that defendant was denied due process when he was
not informed of his right to elect sentencing under either the former
version (720 ILCS 5/9–3(e) (West 2000)) or the more favorable,
amended version (720 ILCS 5/9(d)(2) (West 2004)) of the reckless
homicide statute. 369 Ill. App. 3d at 182-83. The court then vacated
the 14-year sentence imposed by the trial court under the reckless
homicide statute as it existed at the time of the offense.
The next case to consider this same issue, Public Act 93–213 and
the same statutes, is People v. Martinez, 371 Ill. App. 3d 363 (2007).
The Martinez court found that Public Act 93–213, which repealed
parts of the reckless homicide statute, affected the nature and
substance of that statute rather than only changing the sentencing. The
court stated that most importantly Public Act 93–213 eliminated the
enhancing elements in the reckless homicide statute with regard to
homicide while under the influence of alcohol or other drug or drugs.
Further, the public act created a new category of offense under the
DUI statute in order to replace the provisions that the public act
eliminated from the reckless homicide statute. The court noted that
the offense under the DUI statute provides for the exact same
penalties as the former offense of reckless homicide while under the
influence of alcohol or any other drug. The court found it to be clear
that in enacting Public Act 93–213, the General Assembly never
intended to mitigate the punishment for those who drive under the
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influence of alcohol or drugs and cause the death of another. People
v. Martinez, 371 Ill. App. 3d at 373-74.
The recent case of People v. Lush, 372 Ill. App. 3d 629 (2007),
also involved defendant’s claim that the trial court violated her due
process rights by failing to advise her of the option of receiving a
sentence under the more favorable reckless homicide statute that was
in effect at the time of her sentencing. The court reviewed section
9–3(e) of the reckless homicide statute, which was in effect at the
time of defendant’s offense, Public Act 93–213, and the amendments
to the aggravated DUI statute. The court then quoted at length from
Martinez and concluded:
“We agree with the holding and reasoning of Martinez. We
thus hold that Public Act 93–213 resulted in substantive
changes to the reckless-homicide statute. Accordingly, we
conclude that defendant was not entitled to elect to be
sentenced under section 9–3(d)(2) of the Criminal Code
[citation], the more favorable reckless-homicide sentencing
provision created by Public Act 93–213.” People v. Lush, 372
Ill. App. 3d at 638.
Another recent case involving the same issue and statutes is
People v. Calhoun, 377 Ill. App. 3d 662 (2007). The Calhoun court
stated: “We find no reason to depart from the reasoning or conclusion
drawn in Martinez or Lush and likewise find that, based on the
substantive changes made to the reckless homicide statute, defendant
was not entitled to choose under which statute he would like to be
sentenced.” People v. Calhoun, 377 Ill. App. 3d at 665.
As we noted earlier, neither Malin nor the court below discussed
or examined whether the “change” in the reckless homicide statute
was a substantive change, a procedural change or a mitigation of
sentence. Hollins, which involved a sentencing procedure, was cited
in Malin and by the appellate court below as the authority for giving
the defendant the option to choose the statute under which he would
be sentenced. The changes made by Public Act 93–213 are not,
however, changes in sentencing procedures. The changes
recharacterized the conduct that had been reckless homicide while
under the influence of drugs or alcohol as aggravated driving while
under the influence, and retained the sentencing structure of 3 to 14
years’ imprisonment. We agree with the conclusion of the Martinez
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court that “it is clear that in enacting Public Act 93–213, the Illinois
General Assembly never intended for the punishment to be any less
stringent for those who, like defendant, drive under the influence of
alcohol or drugs and cause death.” People v. Martinez, 371 Ill. 3d at
374.
Defendant agrees that the General Assembly probably did not
intend to make a reduced sentence available to defendant. He
contends, however, that the General Assembly could have included
a savings clause in the Public Act 93–213 that would have made the
Act applicable only to persons who committed their offenses after its
effective date. We have held, however, that section 4 of the Statute on
Statutes (5 ILCS 70/4 (West 2004)) is a general savings clause for
substantive changes to statutes. People v. Glisson, 202 Ill. 2d 499
(2002) (the repeal of a statute that decriminalized conduct without
providing a specific saving clause was substantive and did not
preclude conviction for conduct which occurred while the statute was
in effect).
We hold that Public Act 93–213 resulted in substantive changes
to the reckless homicide statute and was not merely a mitigation of
the sentence for reckless homicide. See People v. Martinez, 371 Ill.
App. 3d 363 (2007); People v. Lush, 372 Ill. App. 3d 629 (2007);
People v. Calhoun, 377 Ill. App. 3d 662 (2007). Accordingly,
defendant was not entitled to elect to be sentenced under the reckless
homicide statute as it existed at the time of his sentencing and the
trial court properly sentenced him under the reckless homicide statute
as it existed at the time of the offense. People v. Glisson, 202 Ill. 2d
499 (2002); People v. Bilderback, 9 Ill. 2d 175 (1956). The judgment
of the appellate court vacating the defendant’s 14-year sentence under
section 9–3(e) of the reckless homicide statute, as it existed at the
time of the offense, is reversed and the 14-year sentence imposed by
the trial court is affirmed.
Because we hold that the trial court properly sentenced defendant
under section 9–3(e) of the reckless homicide statute as it existed at
the time of the offense, it is unnecessary to discuss that part of the
appellate court opinion and judgment that remanded the cause to the
trial court for sentencing under the aggravated DUI statute as it
existed at the time of the offense. Therefore, that part of the appellate
court judgment is reversed. The remainder of the appellate court
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judgment affirmed the remainder of the trial court judgment. We
affirm this part of the appellate court judgment.
For the reasons set forth above, the judgment of the appellate
court is affirmed in part and reversed in part, and the judgment of the
circuit court is affirmed.
Appellate court judgment affirmed in part
and reversed in part;
circuit court judgment affirmed.
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