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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