People v. Gancarz

• Decision Date: 03 April 2008
• Docket Number: No. 104029.,104029.
• Citation: 888 N.E.2d 48,228 Ill.2d 312
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Richard GANCARZ, Appellee.
• Court: Illinois Supreme Court

888 N.E.2d 48

228 Ill.2d 312

The PEOPLE of the State of Illinois, Appellant, v. Richard GANCARZ, Appellee.

No. 104029.

Supreme Court of Illinois.

April 3, 2008.

Lisa Madigan, Attorney General, Springfield, Joseph E. Birkett, State's Attorney, Wheaton (Lisa Anne Hoffman, Assistant State's Attorney, of counsel), for the People.

Thomas A. Lilien, Deputy Defender, Kathleen J. Hamill, Assistant Defender, Office of State Appellate Defender, Elgin, for appellee.

OPINION

Justice KARMEIER delivered the judgment of the court, with opinion.

The issue in this case is whether the trial court violated the due process rights of defendant Richard Gancarz by failing to advise him of his option to be sentenced under the reckless homicide statute as it existed at the time of the offense (720 ILCS 5/9-3(a) (West 2000)) or under the reckless homicide statute as it existed at the time he was sentenced (720 ILCS 5/9-3(a) (West 2004)).

Defendant was charged by an indictment with several counts of reckless homicide (720 ILCS 5/9-3(a) (West 2000)), two counts of aggravated driving under the influence (DUI) (625 ILCS 5/11-501(a)(4), (d)(1)(C) (West 2000)), and driving with a suspended license (625 ILCS 5/6-303(a) (West 2000)). These charges arose from a collision of defendant's tractor-semitrailer with a car driven by Aric Wooley in a busy intersection on June 16, 2000. The defendant was under the influence of cannabis and Wooley died as a result of injuries he received in the collision.

After a bench trial in the circuit court of Du Page County, defendant was convicted of reckless homicide, aggravated driving under the influence (DUI), and driving on a suspended license. Following the sentencing hearing on December 19, 2003, the trial court merged the DUI charge with the reckless homicide charge and sentenced defendant under the statutes in effect at the time of the offense to a 14-year prison term for reckless homicide with a concurrent 3-year term for driving on a suspended license.

The appellate court affirmed the defendant's convictions but vacated the 14-year sentence for reckless homicide because defendant was denied due process when he was not informed by the trial court of his right to elect sentencing under the reckless homicide statute as it existed at the time of the offense or as it existed at the time of his sentencing; it remanded the cause to the trial court for sentencing under the aggravated DUI statute as it existed at the time of the offense; and it affirmed the remainder of the judgment. 369 Ill.App.3d 154, 307 Ill.Dec. 450, 859 N.E.2d 1127. Aggravated DUI, as it existed at the time of the crime, and under which defendant was also charged and convicted, was punishable by an enhanced sentence of 1 to 12 years. 625 ILCS 5/11-501(a)(4), (d)(1)(C), (d)(2) (West 2000). We granted the State's petition for leave to appeal. 210 Ill.2d R. 315. For the reasons that follow, the judgment of the appellate court is affirmed in part and reversed in part, and the judgment of the trial court is affirmed.

BACKGROUND

At the time of the offense on June 16, 2000, section 9-3(a) of the Criminal Code of 1961 provided that reckless homicide is committed by one who unintentionally causes the death of another through operation of a motor vehicle while engaging in acts likely to cause death or great bodily harm and performing those acts recklessly. 720 ILCS 5/9-3(a) (West 2000); see People v. Sienkiewicz, 208 Ill.2d 1, 280 Ill.Dec. 516, 802 N.E.2d 767 (2003); People v. Wilson, 143 Ill.2d 236, 157 Ill.Dec. 473, 572 N.E.2d 937 (1991). Section 9-3(d)(2) classified reckless homicide as a Class 3 felony (720 ILCS 5/9-3(d)(2) (West 2000)), punishable by two to five years' imprisonment (see 730 ILCS 5/5-8-1(a)(6) (West 2000)). In addition to this general classification of reckless homicide as a Class 3 felony, section 9-3(e) provided, in pertinent part, as follows:

"[I]n cases involving reckless homicide in which the defendant was determined to have been under the influence of alcohol or any other drug or drugs as an element of the offense, or in cases in which the defendant is proven beyond a reasonable doubt to have been under the influence of alcohol or any other drug or drugs, the penalty shall be a Class 2 felony, for which a person, if sentenced to a term of imprisonment, shall be sentenced to a term of not less than 3 years and not more than 14 years." 720 ILCS 5/9-3(e) (West 2000).

The General Assembly later enacted Public Act 93-213 with an effective date of July 18, 2003, which removed parts of the reckless homicide statute and added and amended parts of the aggravated driving under the influence statute. Pub. Act 93-213, §§ 5, 7, eff. July 18, 2003. This public act removed subsections 9-3(b), 9-3(c), 9-3(e), and 9-3(e-5) from the reckless homicide statute, each of which pertained to alcohol or any other drug. The act also added and amended section 11-501(d)(1) of the Vehicle Code (625 ILCS 5/11-501(d)(1) (West 2004)), which defines aggravated DUI. The act added section 11-501(d)(1)(F), which provides, in pertinent part:

"(d)(1) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof if:

* * *

(F) the person, in committing a [DUI] violation * * * was involved in a motor vehicle * * * accident that resulted in the death of another person, when the violation * * * was a proximate cause of the death." 625 ILCS 5/11-501(d)(1)(F) (West 2004).

Public Act 93-213 also amended section 11-501(d)(1)(2) to provide:

"Aggravated driving under the influence of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof as defined in subparagraph (F) of paragraph (1) of this subsection (d) is a Class 2 felony, for which the defendant, if sentenced to a term of imprisonment, shall be sentenced to * * * a term of imprisonment of not less than 3 years and not more than 14 years if the violation resulted in the death of one person * * *." 625 ILCS 5/11-501(d)(2) (West 2004).

The practical effect of Public Act 93-213 was to simultaneously remove section 9-3(e) from the reckless homicide statute and add similar language to the aggravated DUI statute, including the sentence of not less than 3 and not more than 14 years' imprisonment. After the removal of section 9-3(e), the reckless homicide statute remained a Class 3 felony punishable by two to five years' imprisonment. 720 ILCS 5/9-3(d)(2) (West 2000).

STANDARD OF REVIEW

Because the facts of this case are not in dispute, the question is a legal one and our review is de novo. People v. Bracey, 213 Ill.2d 265, 270, 290 Ill.Dec. 202, 821 N.E.2d 253 (2004).

ANALYSIS

There is no dispute that defendant was not admonished by the trial court of a right to choose to be sentenced under the reckless homicide statute as it existed on the date of the offense or as that statute existed on the date of his sentencing. Where the defendant has a right to make such an election, we have held that in the absence of a showing that he was advised of his right to elect under which statute he should be sentenced, and an express waiver of that right, the defendant is denied due process of law. People v. Hollins, 51 Ill.2d 68, 280 N.E.2d 710 (1972).

Defendant argues that he has a right to choose to be sentenced under the reckless homicide statute as it existed on the date of the offense or as that statute existed on the date of his sentencing, and he relies on the second sentence of section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2004)), which provides:

"If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect."

Defendant contends that he was charged with and convicted of reckless homicide as defined in section 9-3(a). At the time the offense was committed, he could have been sentenced under section 9-3(e) as a Class 2 felon and sentenced to 3 to 14 years' imprisonment, rather than a Class 3 felon under section 9-3(d); however, at the time he was sentenced, the penalty provision of section 9-3(e) had been removed from the statute. Nothing in the remaining penalty provision, set forth in section 9-3(d), precluded the judge from sentencing him to two to five years' imprisonment as a Class 3 felon for having committed the crime for which he was convicted, namely, reckless homicide. Thus, the 2003 amendment did not change the nature of reckless homicide, nor did it make a substantive change to any element of the offense. It only removed an enhanced-sentencing provision.

In support of this argument, defendant places great reliance on People v. Jackson, 99 Ill.2d 476, 77 Ill.Dec. 113, 459 N.E.2d 1362 (1984). In Jackson the defendant committed theft by taking property valued at $251.98. At the time of the offense, the theft statute penalized the taking of property worth more than $150 as a felony. Before sentencing, an amendment to the theft statute became effective, which raised the felony demarcation value of property to $300. On appeal, defendant sought to be resentenced as a misdemeanant under the theft statute as amended.

In Jackson defendant argued that the amendment applied only to sentencing, i.e., mitigation of punishment. The State argued the value of the property taken is an element of the crime, and thus the effect of retroactive application would be to repeal the prior law, a result expressly forbidden by the first and third sentences of section 4 of the Statute on Statutes which provide:

"No new law shall be construed to repeal a former law * * * as to any offense committed against the former law, or as to any act done, any * * * punishment incurred * * * or in any way whatsoever to affect any such offense or act so committed or done * * *...