People v. Lush

NO. 4-05-0893 Filed 4/18/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
DORIS C. LUSH, ) No. 03CF422
Defendant-Appellant. )
) Honorable
) Robert J. Eggers,
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

In May 2005, a jury convicted defendant, Doris C. Lush,

of two counts of reckless homicide of Vicky Goins (720 ILCS 5/9-

3(a), (c)(1), (c)(2) (West 2002)) (counts I and II), three counts

of aggravated driving under the influence of alcohol (aggravated

DUI (alcohol)) (625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(C) (West

2002)) (counts III, IV, and VII), aggravated driving under the

influence of cannabis (aggravated DUI (cannabis)) (625 ILCS 5/11-

501(a)(6) (West 2002)) (count V), and failure to stop at a

traffic-control signal (625 ILCS 5/11-306 (West 2002)) (count

VI). The trial court later sentenced her to 10 years in prison

on count I, 10 years in prison on count II, 3 years in prison on

count IV, and 3 years in prison on count V, with those sentences

to be served concurrently. The court also ordered defendant to

pay a $200 fine on count VI. (The court did not enter judgment
on counts III and VII, having determined that they merged into

defendant's convictions on counts I and II, respectively.)

Defendant appeals, arguing that (1) she cannot stand

convicted of both counts of reckless homicide because to do so

violates the one-act, one-crime rule; (2) aggravated DUI (alco-

hol) and aggravated DUI (cannabis) are both lesser-included

offenses of reckless homicide; (3) one of her two aggravated DUI

convictions must be vacated because she cannot stand convicted of

both aggravated DUI (alcohol) and aggravated DUI (cannabis) under

the one-act, one-crime rule; and (4) 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.

Because we conclude that (1) defendant cannot stand convicted of

both counts of reckless homicide under the one-act, one-crime

rule and (2) aggravated DUI (alcohol) is a lesser-included

offense of reckless homicide, we vacate counts I and IV and

otherwise affirm defendant's convictions and sentences.

I. BACKGROUND

In May 2005, the State filed the following amended

charges against defendant regarding a May 4, 2003, accident: (1)

two counts of reckless homicide, in that defendant, while acting

in a reckless manner, (a) drove while the alcohol concentration

in her blood was .08 or above and disobeyed a traffic light,

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causing a crash and Goins' death (720 ILCS 5/9-3(a), (c)(1) (West

2002)) (count I), and (b) drove while under the influence of

alcohol and disobeyed a traffic light, causing a crash and Goins'

death (720 ILCS 5/9-3(a), (c)(2) (West 2002)) (count II); (2)

three counts of aggravated DUI (alcohol), in that defendant (a)

drove while the alcohol concentration in her blood was .08 or

above and had two prior DUI convictions (625 ILCS 5/11-501(a)(1),

(d)(1)(C) (West 2002)) (count III), (b) drove while under the

influence of alcohol to a degree that she was unable to drive

safely and had two prior DUI convictions (625 ILCS 5/11-

501(a)(2), (d)(1)(C) (West 2002)) (count IV), and (c) drove while

under the influence of alcohol and disobeyed a traffic light,

causing a crash and Goins' death (625 ILCS 5/11-501(a)(2),

(d)(1)(C) (West 2002)) (count VII); (3) aggravated DUI (canna-

bis), in that defendant drove with cannabis present in her urine

and had two prior DUI convictions (625 ILCS 5/11-501(a)(6) (West

2002)) (count V); and (4) failure to stop at a traffic-control

device, in that defendant entered an intersection while the light

was red (625 ILCS 5/11-306 (West 2002)) (count VI).

Because the parties are familiar with the evidence

presented at defendant's jury trial, which was held later in May

2005, we discuss it only to the extent necessary to place defen-

dant's arguments in context. The evidence showed that during the

early evening hours of May 4, 2003, defendant was driving a Ford

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Explorer east on Laurel Street in Springfield. Defendant ran a

red light at the intersection of Laurel and Eleventh Street,

colliding with a blue Chrysler that was being driven by Goins.

Goins died later that night during emergency surgery at St.

John's Hospital. Defendant also was transported to St. John's

for treatment, where a routine toxicology test (performed at 7

p.m.) showed that her blood-serum alcohol content was .24 and her

urine tested positive for cannabinoids. Defendant's treating

physician testified that defendant showed signs of intoxication.

Forensic toxicologist Daniel Brown testified that defendant's

whole blood alcohol content at 7 p.m. on May 4, 2003, was .209

grams per deciliter. (Her blood-serum alcohol content was higher

because serum contains a higher percentage of water and attracts

more alcohol.) Brown calculated that at the time of the inci-

dent, defendant's whole blood alcohol content was .21 grams per

deciliter. Brown also opined that at the time of the incident,

defendant's reaction time, motor skills, and eye-hand coordina-

tion were "greatly impaired." On this evidence, the jury con-

victed defendant of all counts.

In June 2005, the trial court sentenced defendant to 10

years in prison on count I, 10 years in prison on count II, 3

years in prison on count IV, and 3 years in prison on count V,

with those sentences to be served concurrently. The court also

ordered defendant to pay a $200 fine on count VI. (The court

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sentenced defendant on counts I and II under section 9-3(e) of

the Criminal Code of 1961 (720 ILCS 5/9-3(e) (West 2002)), which

provided that reckless homicide involving DUI (alcohol or drugs)

was classified as a Class 2 felony punishable by 3 to 14 years in

prison. As earlier stated, the court did not enter judgment on

counts III and VII, having determined that they merged into

defendant's convictions on counts I and II, respectively.)

This appeal followed.

II. ANALYSIS

A. Defendant's Claim That Her Reckless-Homicide
Convictions Violate the One-Act, One-Crime Rule

Defendant first argues that she cannot stand convicted

of both counts of reckless homicide (which involved only one

victim--namely, Goins) because to do so violates the one-act,

one-crime rule set forth in People v. King, 66 Ill. 2d 551, 566,

363 N.E.2d 838, 844-45 (1977). The State concedes that this

court should vacate defendant's conviction under count I, and we

accept the State's concession. See People v. Henderson, 329 Ill.

App. 3d 810, 828, 768 N.E.2d 222, 237 (2002) (in which the

appellate court vacated one of the defendant's reckless-homicide

convictions because only one decedent was involved). Accord-

ingly, we vacate defendant's reckless-homicide conviction under

count I.

B. Defendant's Claim That Aggravated DUI (Alcohol) and

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 Aggravated DUI (Cannabis) Are Both Lesser-Included
Offenses of Reckless Homicide

Defendant next argues that aggravated DUI (alcohol) and

aggravated DUI (cannabis) are both lesser-included offenses of

reckless homicide. We agree only that aggravated DUI (alcohol)

is a lesser-included offense of reckless homicide.

In general, courts have taken two different approaches

to identifying lesser-included offenses--the abstract-elements

approach and the charging-instrument approach. People v. Bowens,

307 Ill. App. 3d 484, 492, 718 N.E.2d 602, 609 (1999). Our

supreme court has expressed its preference for the charging-

instrument approach. See People v. Kolton, 219 Ill. 2d 353, 360-

61, 848 N.E.2d 950, 954-55 (2006) (discussing People v. Novak,

163 Ill. 2d 93, 643 N.E.2d 762 (1994) (in which the supreme court

adopted the charging-instrument approach)). "The charging

instrument approach looks to the allegations in the charging

instrument to see whether the description of the greater offense

contains a 'broad foundation' or 'main outline' of the lesser

offense." Kolton, 219 Ill. 2d at 361, 848 N.E.2d at 954-55.

Under the charging-instrument approach, the decision whether an

offense is lesser included involves a case-by-case determination

"using the factual description of the charged offense in the

indictment." Kolton, 219 Ill. 2d at 367, 848 N.E.2d at 958. "A

lesser offense will be 'included' in the charged offense if the

factual description of the charged offense describes, in a broad

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way, the conduct necessary for the commission of the lesser

offense and any elements not explicitly set forth in the indict-

ment can reasonably be inferred." Kolton, 219 Ill. 2d at 367,

848 N.E.2d at 958.

With these principles in mind, we first review the

statutory definition of aggravated DUI (alcohol) and determine

whether the facts alleged in count II of the charging instrument

(charging reckless homicide) contain a broad foundation or main

outline of the offense of aggravated DUI (alcohol). Section 11-

501(a)(2) of the Illinois Vehicle Code, which defines the offense

of DUI (alcohol), provides, in pertinent part, as follows:

"(a) A person shall not drive or be in

actual physical control of any vehicle within

this State while:

***

(2) under the influence of alcohol[.]"

625 ILCS 5/11-501(a)(2) (West 2002).

Section 11-501(d)(1)(A) of the Vehicle Code provides that

"[e]very person convicted of committing a violation of this

[s]ection shall be guilty of aggravated driving under the influ-

ence" if the offense was her third similar conviction. 625 ILCS

5/11-501(d)(1)(A) (West 2002). However, prior DUI convictions do

not constitute an element of an aggravated DUI charge. People v.

Robinson, 368 Ill. App. 3d 963, 977, 859 N.E.2d 232, 247 (2006);

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see also 725 ILCS 5/111-3(c) (West 2002) (when the State seeks an

enhanced sentence because of a prior conviction, "the fact of

such prior conviction and the State's intention to seek an

enhanced sentence are not elements of the offense").

Count II of the charging instrument alleged that

defendant committed the offense of reckless homicide in that she

"while acting in a reckless manner, performed

acts likely to cause the death of or great

bodily harm to [Goins], in that said defen-

dant operated a motor vehicle *** while under

the influence of alcohol and disobeyed a

traffic light ***, causing a crash between

her motor vehicle and [Goins'] motor vehicle,

thereby causing the death of [Goins]."

We conclude that count II sets forth a main outline of

aggravated DUI (alcohol). In particular, we note that count II

provided that defendant operated a motor vehicle "while under the

influence of alcohol." That language explicitly tracks the

language of section 11-501(a)(2) (625 ILCS 5/11-501(a)(2) (West

2002)), which defines aggravated DUI (alcohol). See People v.

Green, 294 Ill. App. 3d 139, 149, 689 N.E.2d 385, 392 (1997)

(concluding that aggravated DUI (alcohol) is a lesser-included

offense of reckless homicide).

In so concluding, we reject the State's contention that

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aggravated DUI (alcohol) is not a lesser-included offense of

reckless homicide because the prior DUI convictions that enhanced

the offense of DUI (alcohol) to aggravated DUI (alcohol) were

elements of the offense not set forth in count II. As stated

above, prior DUI convictions do not constitute an element of an

aggravated DUI charge. Thus, we need not consider whether count

II contains a broad foundation or main outline of prior DUI

convictions.

We next review the statutory definition of aggravated

DUI (cannabis) and determine whether the facts alleged in count

II contain a broad foundation or main outline of the offense of

aggravated DUI (cannabis). Section 11-501(a)(6) of the Illinois

Vehicle Code, which defines the offense of DUI (cannabis),

provides, in pertinent part, as follows:

"(a) A person shall not drive or be in

actual physical control of any vehicle within

this State while:

* * *

(6) there is any amount of a

drug, substance, or compound in the

person's breath, blood, or urine

resulting from the unlawful use or

consumption of cannabis ***." 626

ILCS 5/11-501(a)(6) (West 2002).

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 Reviewing the allegations of count II, we conclude that

count II does not set forth a broad foundation or main outline of

aggravated DUI (cannabis). In particular, count II does not

allege that defendant operated a motor vehicle while under the

influence of, or with the presence in her body of, a substance

containing cannabis. Instead, count II alleged that defendant

operated a motor vehicle under the influence of alcohol. We thus

conclude that aggravated DUI (cannabis) is not a lesser-included

offense of reckless homicide.

Accordingly, because aggravated DUI (alcohol) is a

lesser-included offense of reckless homicide, we vacate defen-

dant's aggravated DUI (alcohol) conviction (count IV). Because

we have done so, we need not address defendant's argument that

one of her two aggravated DUI convictions must be vacated because

she cannot stand convicted of both aggravated DUI (alcohol) and

aggravated DUI (cannabis) under the one-act, one-crime rule set

forth in King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.

C. Defendant's Claim That the Trial Court
Violated Her Due-Process Rights

Last, defendant argues 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. We

disagree.

In general, a defendant is entitled to elect to be

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sentenced either under the law in effect at the time she commit-

ted the offense or the law in effect at the time of sentencing.

People v. Hollins, 51 Ill. 2d 68, 71, 280 N.E.2d 710, 712 (1972);

People v. Martinez, No. 1-04-2023, slip op. at 8-9 (January 12,

2007), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___. However,

if the newly enacted statute changed the nature or substantive

elements of an existing offense (as opposed to merely reducing

the applicable punishment), the defendant is not entitled to

choose the statute under which she may be sentenced and, instead,

should be convicted and sentenced under the law in effect at the

time she committed the offense. Martinez, slip op. at 9, ___

Ill. App. 3d at ___, ___ N.E.2d at ___; see also People v. Land,

178 Ill. App. 3d 251, 260, 533 N.E.2d 57, 63 (1988) (if the newly

enacted statute "change[s] the nature or substantive elements of

the offense, rather than only the punishment, a defendant cannot

take advantage of the mitigation of the punishment in the new

law").

In this case, on May 4, 2003 (the date of the offense),

section 9-3 of the Criminal Code generally classified reckless

homicide as a Class 3 felony, punishable by two to five years in

prison (720 ILCS 5/9-3(d)(2) (West 2002); 730 ILCS 5/5-8-1(a)(6)

(West 2002)). In addition to that general classification,

section 9-3(e) provided, in pertinent part, as follows:

"[I]n cases involving reckless homicide in

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 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 sen-

tenced 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 2002).

Effective July 18, 2003 (approximately two months after

the offense and two years prior to defendant's sentencing), the

legislature amended section 9-3 of the Criminal Code (Pub. Act

93-213, §9-3, eff. July 18, 2003 (2003 Ill. Laws 2120, 2122)) in

response to our supreme court's decision in People v. Pomykala,

203 Ill. 2d 198, 784 N.E.2d 784 (2003). In Pomykala, our supreme

court held that section 9-3(b) created an improper mandatory

presumption because once the jury concluded that the defendant

was intoxicated, the jury was to presume that the defendant was

reckless unless the defendant proved otherwise. Pomykala, 203

Ill. 2d at 207-08, 784 N.E.2d at 790. Under the newly enacted

version of section 9-3, reckless homicide remained a Class 3

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felony punishable by two to five years in prison (720 ILCS 5/9-

3(d)(2) (West 2004); 730 ILCS 5/5-8-1(a)(6) (West 2004)).

However, Public Act 93-213 made significant changes to section 9-

3, including removing subsection (e), under which reckless

homicide involving DUI (alcohol or drugs) was classified as a

Class 2 felony punishable by 3 to 14 years in prison.

In addition, Public Act 93-213 amended section 11-

501(d) of the Vehicle Code (625 ILCS 5/11-501(d) (West 2004)),

which defines aggravated DUI, by adding language similar to

section 9-3(e) of the Criminal Code to offset the removal of

section 9-3(e). In particular, Public Act 93-213 added section

11-501(d)(1)(F) of the Vehicle Code, which provides, in pertinent

part, as follows:

"Every person convicted of committing a

violation of this [s]ection 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, snowmobile,

all-terrain vehicle, or watercraft

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 accident that resulted in the death

of another person, when the viola-

tion *** 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)(2) to provide,

in pertinent part, that aggravated DUI (alcohol or drugs) is a

Class 2 felony with a penalty range of 3 to 14 years in prison if

the violation resulted in the death of one person. 625 ILCS

5/11-501(d)(2) (West 2004).

In Martinez, the defendant raised the same issue

defendant now raises on appeal--namely, that the trial court

violated his due-process rights by failing to advise him of the

option of receiving a sentence under the more favorable reckless-

homicide statute that was in effect prior to the enactment of

Public Act 93-213 and at the time of the defendant's sentencing.

The First District rejected the defendant's argument, upon

holding that Public Act 93-213 resulted in substantive changes to

the reckless-homicide statute. Martinez, slip op. at 11, ___

Ill. App. 3d at ___, ___ N.E.2d at ___. In so holding, the First

District wrote, in pertinent part, as follows:

"[W]e believe that Public Act 93-213, (Pub.

Act 93-213, eff. July 18, 2003), which re-

pealed parts of section 9-3 of the Criminal

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Code (720 ILCS 5/9-3(d)(2) (West 2000)),

affected the nature and substance of the

reckless[-]homicide statute rather than only

changing the sentencing. Most importantly,

Public Act 93-213 eliminated the enhancing

elements in the reckless[-]homicide statute

with regard to reckless homicide while intox-

icated. *** [W]e note that the Illinois

General Assembly created a new category of

offense under the DUI statute in order to

replace the provisions that Public Act 93-213

eliminated from the reckless[-]homicide stat-

ute. See 625 ILCS 5/11-501(d) (West 2004).

The new offense under the DUI statute pro-

vided for the exact same penalties as the

former offense of reckless homicide. Thus,

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. In light of these substan-

tive changes, we do not believe that defen-

dant should have been entitled to take advan-

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 tage of the more favorable sentencing provi-

sions created by Public Act 93-213." (Empha-

ses added.) Martinez, slip op. at 12-13, ___

Ill. App. 3d at ___, ___ N.E.2d at ___.

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 (720 ILCS 5/9-3(d)(2) (West

2004)), the more favorable reckless-homicide sentencing provision

created by Public Act 93-213.

In so concluding, we note that to the extent our

decision conflicts with People v. Gancarz, 369 Ill. App. 3d

154,182-83, 859 N.E.2d 1127, 1153 (2006) (in which the Second

District concluded--based on different reasoning--that the

defendant should have been given the opportunity to be sentenced

under the new, more favorable reckless-homicide sentencing

provision), we decline to follow it.

III. CONCLUSION

For the reasons stated, we vacate counts I and IV and

otherwise affirm defendant's convictions and sentences.

Affirmed in part; vacated in part.

APPLETON and McCULLOUGH, JJ., concur.

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