specially concurring:
Although I agree with the majority that the judgment of the circuit court should be affirmed, I disagree with the majority’s conclusion that section 9 of the Act applies in this case.
The defendant argues that he is entitled to a new sentencing hearing because the trial court improperly considered the victim impact statement of Mrs. Aeschlimann. The majority concludes that this argument is foreclosed by section 9 of the Act, which states, “Nothing in this Act shall create a basis for vacating a conviction or a ground for appellate relief in any criminal case.” 725 ILCS 120/9 (West 2000). I disagree.
In the exercise of statutory construction, our primary task is to ascertain and effectuate the intent of the legislature. Richardson, 196 Ill. 2d at 228. The most reliable indicator of legislative intent is the language of the statute itself. Richardson, 196 Ill. 2d at 228. The language of a statute must be given its plain and ordinary meaning, and where the language is clear and unambiguous, we have no occasion to resort to aids of statutory construction. Richardson, 196 Ill. 2d at 228.
It is clear that the victim of a violent crime enjoys the statutory right to present a victim impact statement at a sentencing hearing. See 725 ILCS 120/6 (West 2000). The Act “ ‘provides for the right of victims of violent crimes, including the relatives of a deceased, to address the court regarding the impact of the criminal conduct upon their lives.’ [Citation.]” People v. Hope, 184 Ill. 2d 39, 49 (1998). The Act further dictates that the court consider the victim impact statements in determining a defendant’s sentence. Hope, 184 Ill. 2d at 49.
There is no doubt that Mrs. Aeschlimann was a “crime victim” as a result of her daughter’s death and that her daughter was a victim of a “violent crime,” as defined under the Act (725 ILCS 120/3(a), (c) (West 2000)), relative to the offense of involuntary manslaughter (720 ILCS 5/9—3(a) (West 2000)). However, the defendant was not convicted of involuntary manslaughter. Rather, he was convicted of unlawful delivery of a substance containing cocaine (720 ILCS 570/ 401(c)(2) (West 2000)) and unlawful delivery of a controlled substance (720 ILCS 570/401(e) (West 2000)), which under the plain and ordinary meaning of the Act do not meet the criteria for a “violent crime.” See 725 ILCS 120/3(c) (West 2000); Richardson, 196 Ill. 2d at 228. Accordingly, the right of Mrs. Aeschlimann to make a statement as a “crime victim” under the Act did not exist. See 725 ILCS 120/3 (a) (West 2000). Therefore, contrary to the majority, I believe the defendant’s argument is not foreclosed by section 9 of the Act. 725 ILCS 120/9 (West 2000).
It is important to note that unlawful delivery or possession of a controlled substance is never a victimless crime. The obvious devastating effects of illegal controlled substances on a community, or in this case, on a family and a young woman, can never be underestimated and are every parent’s nightmare. Unfortunately, the Act simply does not apply to unlawful delivery of a controlled substance. Perhaps the legislature may eventually consider expanding the definition of a “violent crime” to include certain controlled substance offenses.
Nonetheless, even though there was no basis in the Act for the trial court to consider the victim impact statement, the trial court’s consideration of this statement was harmless error. It is well established that where a sentencing hearing is conducted before the trial court rather than a jury, the court is presumed to consider only competent and relevant evidence in determining the sentence. Richardson, 196 Ill. 2d at 233. As such, I agree with the majority that the basis for the trial court’s sentence determination was the exceedingly strong evidence that the defendant was a sophisticated and unrepentant drug trafficker. The trial court placed little, if any, emphasis on the victim impact statement of Mrs. Aeschlimann. Consequently, the admission of her statement did not deprive the defendant of a fair sentencing hearing.