specially concurring:
I agree that People v. Moore, 207 Ill. 2d 68 (2003), requires the cause be remanded to the trial court for a hearing to determine the factual basis of defendant’s ineffective-assistance-of-counsel claim. I also agree that defendant was improperly sentenced in this case. However, I am concerned that resentencing alone may not cure the sentencing error.
To analyze the sentencing issue raised in this case, it is necessary first to review the language of the original charge. The State charged defendant with violating subsection 12 — 14(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/1 — 1 et seq. (West 1998)) for acts committed on October 5, 2004. Specifically, defendant was charged with committing the offense of aggravated criminal sexual assault “while displaying a dangerous weapon being a firearm” (emphasis added) under a subsection of the current statute that requires the weapon used to be other than a firearm.
Formal, nonsubstantive defects in a charging instrument may be corrected by the State at any time with a motion to amend the charge. 725 ILCS 5/111 — 5 (West 2004); People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). However, a defect caused by charging an offense based on a statute no longer in effect when the alleged offense occurred is fatal, rendering the entire instrument invalid, and warranting reversal of a resulting conviction. Tellez-Valencia, 188 Ill. 2d at 527, citing People v. Wasson, 175 Ill. App. 3d 851, 854-55 (1988).
Importantly, the State did not move to amend the charge at any point during the proceedings. Under the 1998 version of subsection 12 — 14(a)(1) of the Code, a Class 1 felony criminal sexual assault became an aggravated Class X offense when “the accused displayed, threatened to use, or used a dangerous weapon.” 720 ILCS 5/12— 14(a)(1) (West 1998). The 1998 version of the Class X offense remained in effect only until December 31, 1999. Nevertheless, the State used the language of the 1998 statute to charge this defendant with a crime committed with a firearm in 2004.
A brief history of the evolution of the aggravated criminal sexual assault statute is helpful to an understanding of the sentencing issue discussed above. The Illinois legislature, adopting an active approach to deter crimes committed with firearms, amended the Code effective January 1, 2000, by enacting Public Act 91 — 404. This Act added the graduated “15/20/25-to-life” sentencing enhancements for many sexual assaults and other felony offenses committed with a firearm.2 The General Assembly declared its legislative intent as follows:
“In order to deter the use of firearms in the commission of a felony offense, the General Assembly deems it appropriate for a greater penalty to be imposed when a firearm is used or discharged in the commission of an offense than the penalty imposed for using other types of weapons.” 720 ILCS 5/33A — 1(b)(1) (West 2000).
The same Act created three new categories of aggravated criminal sexual assaults involving firearms, now labeled subsections 12— 14(a)(8), (a)(9) and (a)(10) of the Code, which divide these offenses committed with a firearm into graduated degrees of Class X felonies (720 ILCS 5/12 — 14(a)(8), (a)(9), (a)(10), (d)(1) (West 2000)). See Pub. Act 91 — 404, §5, eff. January 1, 2000. When creating these new categories of aggravated criminal sexual assaults, the legislature omitted all firearms from subsection 12 — 14(a)(1) and restricted this subsection to aggravated criminal sexual assaults committed with weapons other than firearms. 720 ILCS 5/12 — 14(a)(1) (West 2000). Consequently, on October 5, 2004, the date of the offense in this case, an aggravated criminal sexual assault with a firearm should have been charged under subsection 12 — 14(a)(8), (a)(9) or (a)(10), but could not be charged under subsection 12 — 14(a)(1), because a subsection 12— 14(a)(1) offense could only be committed with a dangerous weapon other than a firearm.
The legislature also decided the nature of the charge and resulting conviction would determine the range of punishment a judge must impose. See 720 ILCS 5/12 — 14(d) (West 2004). Legislative mandates currently include multiple ranges of punishment which are dependent on multifaceted, fact-based nuances tied directly to the numerical subsection of the statute as charged, not to the title of the offense. Such mandates compound the sentencing judge’s difficulty in fashioning an appropriate sentence. Under the current scheme, an error in the statutory numerical subsection of the aggravated criminal sexual assault charged virtually assures the court will commit a sentencing error.
Judges now need flow charts to determine proper punishment. Nevertheless, fundamental fairness demands that full and correct disclosure of mandatory penalties he given to the defendant in advance of trial. Here, complex legislation enacted by a well-intended legislature has resulted in an unforeseen difficulty.
In error, the prosecution adopted the language of the 1998 statute to charge this defendant with a crime committed in 2004. Not only does the defect in the charging instrument raise serious concerns about the validity of the conviction in this case, the charging error resulted in a sentence which added a mandatory 10 years, instead of 15 years, to defendant’s sentence. While this may seem to benefit defendant, he could not have been put on notice that his sentence must be increased by 15 years upon conviction. In my opinion, the record reflects a substantive variance between the charge and the ultimate sentence imposed based on the charging instrument.
This variance is further compounded by outdated IPI instructions (Illinois Pattern Jury Instructions, Criminal, Nos. 11.57, 11.58 (2000)) given by the court in this case, which did not require the jury to find that a firearm was used in this offense. Based on the instructions given, the jury determined defendant used a “dangerous weapon” in the commission of the offense. A dangerous weapon adds 10 years to a sentence. A firearm adds 15 years. The jury did not find that a “firearm” was used. S eeApprendi v. New Jersey, 530 U.S. 466, 494-95, 147 L. Ed. 2d 435, 458, 120 S. Ct. 2348, 2365 (2000) (holding a criminal defendant is entitled to a jury determination that he is guilty beyond a reasonable doubt of not only every element of which he is charged, but also every factor which can be used to enhance his sentence).
Finally, I believe it unfair to characterize the sentencing error as the trial court’s mistake. It is unfortunate error occurred, but it originated with the prosecution’s selection of outdated language in a “form” indictment which should have been discarded or modified long ago. The judge understandably relied on the numerical subsection charged when applying the 10-year sentencing enhancement. Accordingly, I respectfully suggest that on remand, in addition to addressing the ineffective-assistance-of-counsel issues, the trial court and counsel carefully examine whether the error occasioned by the outdated language of the indictment affected not only the sentence imposed, but the propriety of defendant’s conviction as well.
See Pub. Act 91 — 404, §5, eff. January 1, 2000 (amending 720 ILCS 5/8 — 4 (Attempt), 720 ILCS 5/9 — 1.2 (Intentional Homicide of an Unborn Child), 720 ILCS 5/10 — 2 (Aggravated Kidnapping), 720 ILCS 5/12 — 4.3 (Aggravated Battery of a Child), 720 ILCS 5/12 — 11 (Home Invasion), 720 ILCS 5/12 — 14 (Aggravated Criminal Sexual Assault), 720 ILCS 5/12 — 14.1 (Predatory Criminal Sexual Assault of a Child), 720 ILCS 5/18 — 2 (Armed Robbery), 720 ILCS 5/18 — 4 (Aggravated Vehicular Hijacking)).