In re FG

• Decision Date: 28 December 2000
• Docket Number: No. 1-97-0682.,1-97-0682.
• Parties: In re F.G., a Minor, (The People of the State of Illinois, Plaintiff-Appellee, v. F.G., a Minor, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

743 N.E.2d 181

318 Ill.App.3d 709

252 Ill.Dec. 607

In re F.G., a Minor, (The People of the State of Illinois, Plaintiff-Appellee, v. F.G., a Minor, Defendant-Appellant).

No. 1-97-0682.

Appellate Court of Illinois, First District, Fourth Division.

December 28, 2000.

Michael Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Barbara Kamm, of counsel), for appellant.

Richard Devine, State's Attorney, Chicago (Renee Goldfarb, Veronica Calderon, and Kathryn Schierl, of counsel), for Appellee.

Presiding Justice HARTMAN delivered the opinion of the court:

Following a bench trial, defendant was found delinquent on the basis of his having been found accountable for and guilty of first-degree murder and aggravated battery with a firearm. The circuit court committed defendant to the custody of the Department of Corrections, Juvenile Division, until his 21st birthday, pursuant to Public Act 88-680, commonly known as the Safe Neighborhoods Act (705 ILCS 405/5-33(1.5) (West 1996)), which mandated a five year sentence. Subsequent to defendant's sentencing, in People v. Cervantes, 189 Ill.2d 80, 243 Ill.Dec. 233, 723 N.E.2d 265 (1999) (Cervantes), the Illinois Supreme Court declared the Safe Neighborhoods Act unconstitutional and, therefore, void ab initio. Defendant appeals his disposition, alleging that because the Safe Neighborhoods Act was held void ab initio, he should receive a new sentencing hearing under the statute in effect prior to the Safe Neighborhoods Act. For reasons which follow, we agree.

Defendant raises as issues on appeal whether (1) he should be provided a resentencing hearing under the statute existing prior to Public Act 88-680; and (2) the State's argument for application of the mandatory commitment period under Public Act 90-590, the law in effect during the pendency of defendant's appeal, would violate ex post facto principles.

In the evening of December 26, 1995, defendant rode as a passenger in a vehicle driven by his friend, Jesus Lopez. At 105th Street in Chicago, Lopez and defendant encountered another vehicle filled with rival gang members who flashed gang signs and shot at them. Defendant and Lopez escaped unharmed and returned to defendant's house, where defendant, Lopez and Israel Trevino, another friend of defendant, discussed the shooting. Trevino revealed he had a revolver. They decided to drive back to the area of the shooting and seek out rival gang members to shoot at in retaliation. Lopez drove the vehicle with defendant and Trevino as passengers. At the corner of 107th and Mackinaw Streets, defendant, Lopez and Trevino approached a large group of people standing outside, believing them to be members of the rival gang. In actuality, the crowd of people had gathered to memorialize a family member who had died in an earlier shooting at that location. As they drove by, Trevino fired three shots into the crowd. Sergio Marin died after receiving a bullet wound to the back. Two of Marin's aunts, Yolanda and Theresa Carrillo, were injured in the shooting. After the shooting, Defendant, Lopez and Trevino fled to a liquor store, bought beer and returned to defendant's home.

By petition for a finding of delinquency, defendant was charged with being accountable for first-degree murder and aggravated battery with a firearm. The State unsuccessfully moved to have defendant tried as an adult. Defendant then moved to suppress statements he made to police after his arrest. During the hearing on the motion to suppress, a psychologist testified that defendant had an IQ of 65 and therefore could not understand the Miranda warnings. The circuit court denied the motion after concluding that the psychologist's findings were not credible.

A bench trial was conducted on November 18, 1996 and the circuit court adjudicated defendant delinquent on all charges. On January 8, 1997, the court denied defendant's motion for a new trial and committed him to custody of the Department of Corrections, Juvenile Division, until his 21st birthday. Defendant filed a timely notice of appeal.

I

The issues in the instant case involve questions of law entirely; therefore, the standard of review is de novo. People v. Saunders, 288 Ill.App.3d 523, 525, 223 Ill.Dec. 840, 680 N.E.2d 790 (1997).

As earlier noted, the circuit court committed defendant to custody of the Department of Corrections, Juvenile Division, pursuant to Public Act 88-680 (Pub. Act 88-680, eff. January 1, 1995), the Safe Neighborhoods Act (705 ILCS 405/5-33(1.5) (West 1996)),¹ which imposed a mandatory minimum commitment of five years after a finding of delinquency on the basis of first degree murder. Prior to January 1, 1995, a minor found delinquent for first degree murder was subject to commitment with no mandatory minimum sentence. See 705 ILCS 405/5-33 (West 1992).² In Cervantes, the Illinois Supreme Court held that the Safe Neighborhoods Act violated the single subject clause of the Illinois Constitution. Ill. Const. 1970, art. IV, § 8. Shortly thereafter, in In re G.O., 191 Ill.2d 37, 43, 245 Ill.Dec. 269, 727 N.E.2d 1003 (2000) (In re G.O.), the Illinois Supreme Court ruled that because the Safe Neighborhoods Act was declared unconstitutional in its entirety, the Act was void ab initio. During the pendency of defendant's appeal, the Illinois General Assembly passed Public Act 90-590 (Pub. Act 90-590, Art. 2001, § 2001-10, eff. January 1, 1999), the Juvenile Justice Reform Act (705 ILCS 405/5-750 (West 1998)),³ which replaced the unconstitutional mandatory commitment statute with an identical mandatory commitment provision. In analyzing whether resentencing is mandated in the present case, this court must determine the applicable statute to defendant's disposition.

Defendant initially contends that this court should follow the ruling in In re G.O., which found that the respondent no longer was subject to a mandatory sentencing requirement because Public Act 88-680 was void ab initio (191 Ill.2d at 43,245 Ill.Dec. 269,727 N.E.2d 1003), and that this case should be remanded for a new dispositional hearing under the statute in effect prior to Public Act 88-680. The supreme court in In re G.O. explained that when an act is found void ab initio, "the state of the law is as if the act had never been passed." 191 Ill.2d at 43,245 Ill.Dec. 269,727 N.E.2d 1003; People v. Tellez-Valencia, 188 Ill.2d 523, 525, 243 Ill.Dec. 191, 723 N.E.2d 223 (1999); see also People v. Gersch, 135 Ill.2d 384, 390, 142 Ill.Dec. 767, 553 N.E.2d 281 (1990). Therefore, defendant argues, the applicable statute in this case is the statute in effect prior to the enactment of Public Act 88-680, which does not require mandatory commitment time.

The State relies on First of America Trust Co. v. Armstead, 171 Ill.2d 282, 289, 215 Ill.Dec. 639, 664 N.E.2d 36 (1996) (Armstead), in asserting that the mandatory commitment provision recently enacted in Public Act 90-590 should apply in this case because it is the law in effect during the pendency of defendant's direct appeal. The supreme court in Armstead explained, "[w]here the legislature changes the law pending an appeal, the case must be disposed of by the reviewing court under the law as it then exists, not as it was when the judgment was entered by the lower court." 171 Ill.2d at 289, 215 Ill.Dec. 639, 664 N.E.2d 36, quoting Bates v. Board of Education, Allendale Community Consolidated School District No. 17, 136 Ill.2d 260, 268-69, 144 Ill.Dec. 104, 555 N.E.2d 1 (1990). An exception to this rule exists where the application of the change in the law would affect a vested right.⁴ Envirite Corp. v. Illinois Environmental Protection Agency, 158 Ill.2d 210, 215, 198 Ill.Dec. 424, 632 N.E.2d 1035 (1994). Armstead, 171 Ill.2d at 290, 215 Ill.Dec. 639, 664 N.E.2d 36. Therefore, the State argues, this court should apply the law as it exists at the time of appeal.⁵ The State's reliance on Armstead in this case is misplaced.

In Armstead, the supreme court had to determine whether a statutory amendment to a civil statute applied to an existing controversy on appeal, not a criminal statute newly created to replace an unconstitutional act. Plaintiff in Armstead sought to register three underground storage tanks with the office of the State fire marshal. 171 Ill.2d at 284,215 Ill. Dec. 639,664 N.E.2d 36. The State fire marshal denied plaintiff's request for registration and plaintiff sought administrative review in the circuit court. During the pendency of the review, the Illinois General Assembly amended the Gasoline Storage Act (430 ILCS 15/4(b)(1)(A) (West Supp.1993)) to provide that underground storage tanks taken out of operation before January 2, 1974 could not be registered. The circuit court applied the amended statute and confirmed the decision of the fire marshal. In holding that the court properly applied the amended statute, the supreme court utilized the vested rights approach and explained that where an amendment does not reach back and interfere with vested rights, there is no truly retroactive impact.⁶Armstead, 171 Ill.2d at 289,215 Ill.Dec. 639,664 N.E.2d 36.

In the instant case, defendant was given leave to cite People v. Ramsey, 192 Ill.2d 154, 248 Ill.Dec. 882, 735 N.E.2d 533 (2000) (Ramsey) as additional authority. In Ramsey, the jury found defendant guilty of two counts of first degree murder, three counts of attempted first degree murder and one count each of aggravated criminal sexual assault, home invasion and residential burglary. Upon conviction for these offenses, the jury rejected defendant's insanity claim under section 6-2 of the Criminal Code of 1961, as amended by section 15 of Public Act 89-404 (Pub. Act 89-404, eff. August 20, 1995) (720 ILCS 5/6-2 (West 1996)) and determined that defendant was eligible for the death penalty based on the premeditated nature of the crimes. Subsequent to defendant's conviction, in People v. Reedy, 186 Ill.2d 1, 11, 237 Ill.Dec. 74, 708 N.E.2d...