People v. Fernetti, s. 59263

• Court: Supreme Court of Illinois
• Writing for the Court: THOMAS J. MORAN
• Citation: 470 N.E.2d 501,83 Ill.Dec. 375,104 Ill.2d 19
• Parties: , 83 Ill.Dec. 375 The PEOPLE of the State of Illinois, Appellee, v. Shirley Maxine FERNETTI, Appellant. The PEOPLE of the State of Illinois, Appellee, v. James McGINNIS, Appellant.
• Docket Number: Nos. 59263,59295,s. 59263
• Decision Date: 19 October 1984

Page 501

470 N.E.2d 501 104 Ill.2d 19, 83 Ill.Dec. 375 The PEOPLE of the State of Illinois, Appellee,
v.
Shirley Maxine FERNETTI, Appellant.
The PEOPLE of the State of Illinois, Appellee,
v.
James McGINNIS, Appellant. Nos. 59263, 59295. Supreme Court of Illinois. Oct. 19, 1984.

[104 Ill.2d 20] F. Stewart Merdian, Cuba, for appellant in No. 59263.

Walter La Von Pride, Chicago, for appellant in No. 59295.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley, State's Atty., Chicago (Mark L. Rotert and David E. Bindi, Asst. Attys. Gen., and Michael E. Shabat, Joan S. Cherry and Jeanette Sublett, Asst. State's Attys., Chicago, of counsel), for the People.

THOMAS J. MORAN, Justice.

Defendant Shirley Fernetti was charged by information with two counts of murder, one count of involuntary manslaughter, and one count of armed violence. Following[104 Ill.2d 21] a bench trial in the circuit court of Fulton County, she was found guilty of the offenses of involuntary manslaughter and armed violence. Since both charges were based on the same act, the trial court entered judgment only on the greater offense, armed violence. The defendant was then sentenced to the minimum term of six years. On appeal, the appellate court affirmed. 117 Ill.App.3d 44, 72 Ill.Dec. 537, 452 N.E.2d 790.

Similarly, defendant James McGinnis was charged by information in Cook County with two counts of murder and one count of armed violence. After a bench trial, he was found guilty of involuntary manslaughter and armed violence based on involuntary manslaughter. The defendant's involuntary-manslaughter conviction was vacated by the court, and he was sentenced to the minimum term of six years on the armed-violence conviction. On appeal, the appellate court, by order (87 Ill.2d R. 23), affirmed defendant's conviction and sentence (116 Ill.App.3d 1172, 78 Ill.Dec. 940, 462 N.E.2d 1294). Pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)), we granted leave to appeal in each case and consolidated them for the purpose of review.

Page 502

[83 Ill.Dec. 376] The facts in each case are not in dispute and are adequately stated in the appellate court dispositions. The issues to be resolved herein pertain to law, not facts. The common questions are: (1) Is an issue raised for the first time in this court waived; and, if not, (2) may the offense of involuntary manslaughter serve as a predicate felony under the armed-violence statute (Ill.Rev.Stat.1981, ch. 38, pars. 33A-1 through A-3)? Additionally, defendant McGinnis argues that the armed-violence statute is unconstitutional as it violates the fifth, eighth and fourteenth amendments to the Federal Constitution.

As the State correctly points out, neither defendant specifically questioned whether involuntary manslaughter could serve as a predicate felony for armed violence in either the trial or appellate court. This court has often [104 Ill.2d 22] stated, as a general proposition of law, that issues not presented in the lower courts are waived for purposes of further review. (People v. Myers (1981), 85 Ill.2d 281, 291, 55 Ill.Dec. 389, 426 N.E.2d 535; People v. Williams (1977), 66 Ill.2d 179, 189, 5 Ill.Dec. 582, 361 N.E.2d 1110; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill.2d 303, 313, 335 N.E.2d 448.) This general rule, however, is not without exception. It has long been recognized that a change in law will be given effect while a case is on direct review. (See United States v. Schooner Peggy (1801), 4 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49, 51; Linkletter v. Walker (1965), 381 U.S. 618, 627, 85 S.Ct. 1731, 1736; 14 L.Ed.2d 601, 607; People v. McCloskey (1971), 2 Ill.App.3d 892, 900, 274 N.E.2d 358 (supplemental opinion on rehearing).) This rule applies where a judicial decision has intervened, as well as where a statutory change has altered the law. (See Linkletter v. Walker (1965), 381 U.S. 618, 626, 85 S.Ct. 1731, 1736, 14 L.Ed.2d 601, 606.) The above-cited cases acknowledge the duty of a reviewing court to apply existing law. Yet the court cannot perform this duty if the litigants are prevented from noting such a change in their briefs due to their failure to previously raise the point.

In the case at bar, both defendants were tried and their appeals completed prior to this court's decision in People v. Alejos (1983), 97 Ill.2d 502, 74 Ill.Dec. 18, 455 N.E.2d 48. As a result of that decision, voluntary manslaughter cannot be enhanced to a Class X felony under the armed-violence provisions of the criminal code. The defendants, who had been convicted of the Class X offense of armed violence based on the less serious offense of involuntary...