People v. Tellez-Valencia
| Decision Date | 18 November 1999 |
| Docket Number | No. 85524, No. 85532. |
| Citation | 243 Ill.Dec. 191,723 N.E.2d 223,188 Ill.2d 523 |
| Parties | The PEOPLE of the State of Illinois, Appellant, v. Gomecindo TELLEZ-VALENCIA, Appellee. The People of the State of Illinois, Appellee, v. Robbie J. Moore, Appellant. |
| Court | Illinois Supreme Court |
Richard S. London, Staff Atty., State's Atty. Appellate Prosecutor, Elgin, Lisa Anne Hoffman, Asst. Atty. Gen., Chicago, State's Attorney Lake County, for the People in No. 85524.
Barbara R. Paschen, Asst. State Appellate Defender, Elgin, for Gomecindo Tellez-Valencia in No. 85524.
Lawrence J. Essig, Asst. State Appellate Defender, Springfield, for Robbie J. Moore in No. 85532.
Lisa Anne Hoffman, Asst. Atty. Gen., Chicago, State's Atty. Vermilion County, Danville, State's Attys. App. Pros., Springfield, for the People in No. 85532.
Both defendants in this consolidated appeal were convicted of predatory criminal sexual assault of a child. While defendants' respective appeals were pending, this court invalidated Public Act 89-428, which created this offense. Subsequently, in case No. 85524, the appellate court reversed defendant Gomecindo Tellez-Valencia's conviction, holding that the State could not amend the charging instrument on appeal. 295 Ill.App.3d 122, 229 Ill.Dec. 634, 692 N.E.2d 407. However, the appellate court in No. 85532 affirmed defendant Robbie J. Moore's conviction, allowing the State to amend the charge on appeal to aggravated criminal sexual assault. 295 Ill.App.3d 676, 230 Ill.Dec. 553, 694 N.E.2d 184. We consolidated the two cases, and now hold that, when a defendant is convicted of an offense later held unconstitutional, the State may not amend the charging instrument on appeal.
Defendants were both charged with and convicted of predatory criminal sexual assault of a child for acts committed in the spring of 1996. Subsequent to defendants' convictions, and while their appeals were pending, this court held that Public Act 89-428 was enacted in violation of the single subject rule (Ill. Const.1970, art. IV, § 8) and declared the Act unconstitutional in its entirety. Johnson v. Edgar, 176 Ill.2d 499, 224 Ill.Dec. 1, 680 N.E.2d 1372 (1997). Shortly thereafter, the General Assembly passed Public Act 89-462, reenacting the offense of predatory criminal sexual assault of a child. Public Act 89-462 did not become effective, however, until May 29, 1996, and by its language, does not apply to offenses occurring before that date.
On appeal, both defendants argued that their convictions were invalid because they were based upon charging instruments that failed to state an offense. The Second District of the Appellate Court reversed the conviction of defendant Tellez-Valencia, holding that only the grand jury could make a substantive change to the defendant's indictment. 295 Ill.App.3d at 127, 229 Ill.Dec. 634, 692 N.E.2d 407. The Fourth District of the Appellate Court, however, reached the opposite result in defendant Moore's case, holding that the State could amend the trial court's judgment and sentencing order to change the name of the offense of which defendant was convicted from predatory criminal sexual assault of a child to aggravated criminal sexual assault, thereby effectively amending defendant's indictment on appeal. In so holding, the court in Moore noted the identical nature and elements of the two offenses, and reasoned that such an amendment constituted a mere formality, thus affirming the conviction. 295 Ill. App.3d at 683-84, 230 Ill.Dec. 553, 694 N.E.2d 184. We granted leave to appeal in order to resolve this conflict in the appellate court.
When Public Act 89-428 was held unconstitutional by this court's ruling in Johnson v. Edgar, 176 Ill.2d 499, 224 Ill. Dec. 1, 680 N.E.2d 1372 (1997), the offense of predatory criminal sexual assault of a child was rendered void ab initio; that is, it was as if the law never existed. See People v. Gersch, 135 Ill.2d 384, 390, 142 Ill.Dec. 767, 553 N.E.2d 281 (1990). Although the General Assembly later reenacted the offense, this reenactment had the effect of creating an entirely new criminal statute. Each defendant's charging instrument thus failed to state an offense because the statute under which each was charged and prosecuted was not in effect when the alleged offenses occurred. Accordingly, defendants' convictions for predatory criminal sexual assault of a child cannot stand.
The State argues that amendment of defendants' charging instruments on appeal to change the name of the offense charged from predatory criminal sexual assault of a child to aggravated criminal sexual assault is merely a formality because the elements of the two crimes, as well as the statutory language and penalties as applied to defendants, are identical. The State reasons that defendants are not prejudiced in any way by such an amendment because each was apprised of the nature and elements from which to prepare a defense, regardless of the specific name given to the alleged criminal act.
While we acknowledge that formal defects in a charging instrument may be amended by the State at any time (see 725 ILCS 5/111-5 (West 1998)), we disagree with the State's characterization of the proposed amendment in the cases at bar as a mere formality. The committee comments to section 111-5 of the Code of Criminal Procedure of 1963 specifically exclude failure to charge a crime from those defects in a charge considered merely formal and which may be cured by amendment at any time, instead labeling this a substantive defect. See 725 ILCS 5/111-5, Committee Comments-1963 (Smith-Hurd 1992). Further, the defect caused by charging an offense based upon a statute not in effect when the alleged offense occurred is fatal, rendering the entire instrument invalid, and warranting reversal of defendants' convictions. See People v. Wasson, 175 Ill.App.3d 851, 854, 855, 125 Ill.Dec. 369, 530 N.E.2d 527 (1988).
People v. Ryan, 117 Ill.2d 28, 109 Ill. Dec. 162, 509 N.E.2d 1001 (1987), upon which the dissent places great weight, is distinguishable and has no application to the case at bar. In Ryan, the defendants were charged with unlawful possession of a weapon by a felon for acts committed in December 1985 and January 1986. Ryan, 117 Ill.2d at 30-31, 109 Ill.Dec. 162, 509 N.E.2d 1001. The defendants' charging instruments, however, incorrectly cited to "Illinois Revised Statutes, 1983," although the statute which created the offense did not take effect until July 1984. Ryan, 117 Ill.2d at 37, 109 Ill.Dec. 162, 509 N.E.2d 1001. This court held that citation to the wrong edition of the Illinois Revised Statutes on defendants' charging instruments was not a fatal defect and reversed the trial court's ruling that the informations failed to state an offense. Ryan, 117 Ill.2d at 37, 109 Ill.Dec. 162, 509 N.E.2d 1001.
Unlike the present case, however, the defendants in Ryan were charged with an offense that was in existence before, during and after the time the defendants committed their crimes. The offense of predatory criminal sexual assault of a child, by contrast, was rendered nonexistent at the time defendants Moore and Tellez-Valencia committed the acts for which they were convicted. Thus, contrary to the dissent's contention, what occurred in the case at bar was more than just an error in citation on the defendants' charging instruments, as was the case in Ryan; both of the instant defendants were charged with and convicted of a nonexistent offense.
The amendment sought by the State to each defendant's charging instrument is to cure a substantive, not a formal, defect. Accordingly, these amendments may not be made on appeal. The charging instrument in each case is therefore invalid, and each defendant's conviction must be reversed.
Although I am compelled to dissent in this case, my colleagues and I in fact disagree on very little. We agree, for example, that the statutory language defining the offense at issue was in effect when the defendants allegedly committed the offense. Likewise, we agree that, as a consequence of this court's decision in Johnson v. Edgar, 176 Ill.2d 499, 224 Ill.Dec. 1, 680 N.E.2d 1372 (1997), the offense at issue remained a part of the aggravated criminal sexual assault statute.
The only source of contention is the remedy. The defendants were charged with conduct that was unquestionably a crime when committed and has remained a crime ever since. The fact that the charging instruments misnamed the offense is therefore a formal defect that the State should be permitted to amend. Apparently fearing a constitutional deprivation, my colleagues issue an opinion that will result in new trials at which the defendants will be charged with the exact same conduct set forth in the original charging instruments. I believe the majority's approach is both unwarranted and a clear departure from established precedent.
The majority reaches the wrong result because of two faulty premises in its analysis. According to my colleagues, these cases involve (1) an offense held unconstitutional, and (2) charging instruments that fail to state offenses. One of these propositions is misleading; the other is simply incorrect. Once these cases are viewed under the correct factual and legal frame-work, the error of the majority's conclusion becomes obvious.
The majority begins by stating that these consolidated cases involve defendants who have been "convicted of an offense later held unconstitutional." This statement gives new meaning to the phrase "legal fiction." The statutory language relevant to these appeals is the...
To continue reading
Request your trial
-
In re GO
...in its entirety, it is void ab initio; the state of the law is as if the act had never been passed. 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). Thus, respond......
-
People v. Brisco
...with which he was charged did not exist. However, the case defendant cites for this proposition, People v. Tellez–Valencia, 188 Ill.2d 523, 527, 243 Ill.Dec. 191, 723 N.E.2d 223 (1999), is inapposite. There, the statute under which the defendants were charged and convicted was held unconsti......
-
People v. Fields
...is declared unconstitutional, it is void ab initio , or as though the law had never been passed. See People v. Tellez-Valencia , 188 Ill.2d 523, 526, 243 Ill.Dec. 191, 723 N.E.2d 223 (1999).¶ 39 Defendant maintained that because his prior conviction for the Class 4 form of AUUW under case N......
-
People v. Fields
...is declared unconstitutional, it is void ab initio, or as though the law had never been passed. See People v. Tellez–Valencia, 188 Ill.2d 523, 526, 243 Ill.Dec. 191, 723 N.E.2d 223 (1999). ¶ 39 Defendant maintains that because his prior conviction for the Class 4 form of AUUW under case No.......