People v. Atkins

• Decision Date: 20 October 2005
• Docket Number: No. 98257.,98257.
• Citation: 217 Ill.2d 66,838 N.E.2d 943
• Parties: The PEOPLE of the State of Illinois, Appellant, v. William ATKINS, Appellee.
• Court: Illinois Supreme Court

838 N.E.2d 943

217 Ill.2d 66

The PEOPLE of the State of Illinois, Appellant, v. William ATKINS, Appellee.

No. 98257.

Supreme Court of Illinois.

October 20, 2005.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda D. Woloshin, Assistant Attorney General, Chicago, and Renee G. Goldfarb, Janet Powers Doyle, Noah C. Montague, Assistant State's Attorneys, of counsel), for the People.

Michael J. Pelletier, Deputy Defender, Adrienne N. River, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellee.

Justice THOMAS delivered the opinion of the court:

At issue is whether an amendment to the residential burglary statute, making burglary a lesser-included offense of residential burglary, may be applied retroactively. We hold that it may not.

BACKGROUND

The State charged defendant, William Atkins, and his codefendant, Marcus Gross, with residential burglary (720 ILCS 5/19-3 (West 2000)). Defendant's bench trial was held simultaneously with Gross' jury trial. The evidence showed that, on March 19, 2000, Chicago police officers arrested defendant and Gross after observing them removing items from a three-flat building at 1808 West Hastings. Many buildings in the area had been torn down, and the three-flat was the only building remaining on its side of the block. The first and second floors of the building were vacant, but the officers were aware that Josephine Jackson lived in the basement apartment with her children. Jackson had locked the door to her apartment when she left for work that morning, and the door showed signs of forced entry. The apartment had been ransacked, and Jackson later identified as hers the property recovered from defendant and Gross. Jackson testified that she did not know defendant or Gross and did not give them permission to enter her apartment.

The jury found Gross guilty of residential burglary. In defendant's case, however, the trial judge stated that he did not think that it had been proved beyond a reasonable doubt that defendant knew the apartment was a residence. Accordingly, the trial judge convicted defendant only of the "lesser included offense" of burglary.

Defendant appealed, contending that, at the time of the offense, case law established that burglary was not a lesser-included offense of residential burglary. Thus, once the court found that residential burglary had not been proved, he was entitled to an acquittal. The State responded that, subsequent to defendant's conviction, the legislature amended the residential burglary statute to make burglary a lesser-included offense. See 720 ILCS 5/19-3 (West 2002). According to the State, this amendment could be applied retroactively to defendant's case.

The appellate court, First District, disagreed. 348 Ill.App.3d 126, 284 Ill.Dec. 30, 809 N.E.2d 152. The court first noted held defendant had waived the issue by raising it for the first time on appeal. Nevertheless, the court chose to address the issue under the plain error rule because the error raised was so fundamental that it could allow defendant to be convicted of an offense that he could not be convicted of as a matter of law. 348 Ill.App.3d at 128, 284 Ill.Dec. 30, 809 N.E.2d 152. The court then noted the rule that statutory amendments that are procedural may be applied retroactively, while those that apply to substantive law may not. 348 Ill.App.3d at 129, 284 Ill.Dec. 30, 809 N.E.2d 152. The court held that the amendment making burglary a lesser-included offense of residential burglary was substantive because it exposed defendant to conviction of an additional crime. Thus, the court reluctantly reversed defendant's burglary conviction. 348 Ill.App.3d at 130, 284 Ill.Dec. 30, 809 N.E.2d 152. We allowed the State's petition for leave to appeal.

ANALYSIS

The question before us is solely one of law. Accordingly, our review proceeds de novo. People v. Breedlove, 213 Ill.2d 509, 512, 290 Ill.Dec. 602, 821 N.E.2d 1176 (2004).

At the time of the offense, the burglary and residential burglary statutes provided, in relevant part, as follows:

"§ 19-1. Burglary. (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code, nor the offense of residential burglary as defined in Section 19-3 hereof." 720 ILCS 5/19-1(a) (West 2000).

"§ 19-3. Residential burglary. (a) A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." 720 ILCS 5/19-3(a) (West 2000).

At one time, it had been the practice in the appellate court to view burglary as a lesser-included offense of residential burglary. See, e.g., People v. Edgeston, 243 Ill.App.3d 1, 183 Ill.Dec. 196, 611 N.E.2d 49 (1993); People v. Wiley, 169 Ill.App.3d 140, 120 Ill.Dec. 433, 523 N.E.2d 1344 (1988); People v. Johnson, 129 Ill.App.3d 399, 84 Ill.Dec. 717, 472 N.E.2d 854 (1984); People v. Dawson, 116 Ill.App.3d 672, 72 Ill.Dec. 260, 452 N.E.2d 385 (1983).

In People v. Childress, 158 Ill.2d 275, 198 Ill.Dec. 794, 633 N.E.2d 635 (1994), however, this court held that burglary was not a lesser-included offense of residential burglary. We accepted the parties' contention that these statutes described mutually exclusive conduct:

"As the defendant observes, the two offenses are mutually exclusive. Residential burglary can be committed only in dwelling places, while simple burglary cannot occur in a dwelling place. The victim in the present case was attacked and killed in her own home, and thus the defendant could not have been guilty of burglary. Although the defendant failed to raise this point in the proceedings below, he now asks that his conviction for burglary be vacated. The State agrees that the conviction should be vacated, and we vacate the defendant's conviction for that offense." Childress, 158 Ill.2d at 302, 198 Ill.Dec. 794, 633 N.E.2d 635.

Childress proved problematic. For instance, a conflict arose in the appellate court over whether an attached garage was a dwelling. The Second District (People v. Cunningham, 265 Ill.App.3d 3, 9, 202 Ill.Dec. 511, 637 N.E.2d 1247 (1994)), and the Fourth District (Dawson, 116 Ill.App.3d at 675, 72 Ill.Dec. 260, 452 N.E.2d 385), held that it was, while the First District (People v. Mata, 243 Ill.App.3d 365, 368, 183 Ill.Dec. 587, 611 N.E.2d 1235 (1993)), held that it was not. Thus, in a case in which the defendant was convicted of residential burglary of an attached garage, the First District reversed the conviction (Mata, 243 Ill.App.3d at 368-69, 183 Ill.Dec. 587, 611 N.E.2d 1235), while the Second District reversed the conviction of a defendant convicted of burglary of an attached garage (People v. Borgen, 282 Ill.App.3d 116, 122-23, 218 Ill.Dec. 71, 668 N.E.2d 234 (1996)). Because of Childress's holding that the crimes were mutually exclusive, the courts were forced to reverse convictions even though it was clear that the defendant was guilty of some type of burglary offense.

The legislature fixed the problem by amending the residential burglary statute to provide that burglary is a lesser-included offense of residential burglary. Effective June 1, 2001, the burglary and residential burglary statutes now provide as follows:

"§ 19-1. Burglary.

(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft. This offense shall not include the offenses set out in Section 4-102 of The Illinois Vehicle Code." 720 ILCS 5/19-3 (West 2002).

"§ 19-3. Residential burglary.

(a) A person commits residential burglary who knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft. This offense includes the offense of burglary as defined in Section 19-1." 720 ILCS 5/19-1 (West 2002).

Defendant was convicted and sentenced prior to the effective date of these amendments. Thus, the trial judge had no authority to convict defendant of burglary as a lesser-included offense of residential burglary because Childress was a binding interpretation of the statutes then in effect. Defendant's burglary conviction could only be saved if the amended version of section 19-3 could be applied retroactively.

In Commonwealth Edison Co. v. Will County Collector, 196 Ill.2d 27, 255 Ill.Dec. 482, 749 N.E.2d 964 (2001), this court adopted the retroactivity analysis of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Landgraf sets forth a multipart test to determine retroactivity, and the first step is to determine whether the legislature has clearly indicated the temporal reach of the amended statute. Commonwealth Edison, 196 Ill.2d at 38, 255 Ill.Dec. 482, 749 N.E.2d 964. This court later determined, however, that, as long as section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2002)) is in effect, an Illinois court will never need to go beyond step one of the Landgraf test. Caveney v. Bower, 207 Ill.2d 82, 94, 278 Ill.Dec. 1, 797 N.E.2d 596 (2003). Section 4 is a general saving clause in which "the legislature has clearly indicated the `temporal reach' of every amended statute." (Emphasis in original.) Caveney, 207 Ill.2d at 92, 278 Ill.Dec. 1, 797 N.E.2d 596. This court has interpreted section 4 to mean that procedural changes to statutes may be applied retroactively, while substantive changes may...