No. 2--07--0111 Filed: 9-8-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF I LL INO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 06--CF--2826 ) EDMUND T. PROUTY, ) Honorab le ) Mitchell L. Hoffman, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE McLA REN delive

red the o pinion of t

he court : After a bench trial, defendant, Edmund T. Prouty, was convicted of aggravated driving

under the influenc e of alc ohol (DUI ) (625 I LCS 5/1 1--501( d)(1)( A) (West 2006)). The trial court treated the offense as a Class 2 felony and sentenced defendant to three y ears' imprisonment. Th e court denied de fendant 's motion

to recon sider his s entence , and he a ppeals. On appeal, defenda

nt argu es that he

should hav e been se

ntenced for a Cla ss 4 fe lo ny, not a Class 2 felony. Def

endant asserts that Public Act 94--116 (Pub. Act 94--116, eff. January 1, 2006) , insofar as it changed the

law by making aggrava

ted DUI a Class 2 felony , was implicitly repeale d by Public Act 94--609 (Pub. Act 94--609, eff. January 1, 2006)

. We hold tha

t, becau se the two

acts do not irr econcil ably

conflic t, the sec ond did not r epeal the first. T

hus, we a ffirm. The indictment against defendant allege d that, on April 28, 2006, he committed aggravated DUI (625 IL CS 5/11--501(d)(1)(A) (West 2006)) by committing

DUI (625 I LCS 5/11--50 1(a) (We stNo. 2--07--0111

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2006)) for the third or subsequent time. The indictment stated that aggravate d DUI was a Cla ss 2 fe lo ny. The trial court found defendant guilty and sente

nced him to three ye ars' imprisonment, the minimum for a Class 2 felony (730 I LCS 5/5--8--1(a)(5) (

West 2006)). Defendant

moved to reconsider the sentence, arg uing that, under subsection (d)(2) of section 11--501 of the I

llinois Ve hicle Code

(625 I LCS 5/11--501(d)(2) (West 2006)), aggravated D UI was

a Class 4 felony. (We shall ref er to sec ti on 11--501 of the Illinois Vehicle Code as " the DUI statute.") Defendant cited the DUI statute generally

but did not rely on Public Act 94--609. The trial

court denied t he motion, observin g that Pub lic Act 94 --116 ha d made ag grava

ted DUI a Class 2 felony (see

Pub. Act 94--116, §5, eff. January 1, 2006). Defendant timely appealed. On appeal, defendant contends that, although Public Act 94--116, which wa s enacted May 16, 2006, amended subsection (d)(2) of the DUI statute to ma ke ag gr av at ed DU I a C la ss 2 f el on y, Public Act 94--609, which was enacte d May 20, 2 006, d elete d the l anguage that Public Act 94--116 had added and thus repealed the amendment. The State r esponds that the two acts can be reconciled

so as to ef fe ct ua te th e l eg is la tu re 's in te nt to ma ke ag gr av at ed DU I a C la ss 2 f el on y. Defendant

asserts a claim tha t he did not

raise a t th e t rial level. However, we may review his contenti on for pla

in error , as sente

ncing d efenda nt under a

nonexisten

t law woul d ob viously violate his sub stantial rights. See People v. Fields , No. 1--06--3182, slip op. at 3 (June 30, 2008) (argument

that defendant

was improperly se

ntenced under Class X felony sentencing statute instead of Class 2 felony sentenc ing statute was reviewed for plain er ror). Before Public Act 94--116 was enacted, subsecti on (d)(2 ) of the D UI st atute provided that, withexcep tion s not perti nent h ere, a p erson convi cted o f aggr avated DUI wa s guilty of a Class 4No. 2--07--0111

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fe lo ny. 625 IL

CS 5/11--501(d)(2) (West 2004). Public Act 94--116 amended subsection (d)(2) as follows: "Except

as provided in this paragraph (2) and in paragraphs (3) and (4) of subsection (c--1) , a person convicted of aggravated driving

under the influence of alcohol, other drug

or drugs, or intoxicating compound or compounds, or any combination thereof is guilty of

a Class 4 felony. For

a violation of subparagraph (C) of par agraph (1) of

this subsection (d), the defenda

nt, if sentenced to a term of imprisonment, shall be sentenced to not less than one year nor more than 12 ye ars. Except a s provided in paragraph (4) of subsection (c--1), aggravat ed drivi ng under the influence of alcohol, other drug, or drugs, intoxicating compounds [sic] or com

pounds, or

any combinat ion there of as def

ined in subparagraph

(A) of pa ra gr ap h ( 1) of

th is su bs ec ti on (d ) i s a Cl as s 2 fe lo ny. Aggravated driving under the influence of alcoh ol, 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 f

elony , for whic

h the def endant, i f senten ced to a t

erm of imp

risonmen t, shall be sentenced to: (A) a term of imprisonment of not less than 3 year s and not more than 14 years if the viola tion resu lted in

the death of one person; or (B) a te rm of impr

isonment o f not less than 6 years a

nd not more th an 28 y

ears if t he violat ion resul ted in the deaths of 2 or more persons. For any

prosecution under this subsection (d), a certified c opy of the d riving abstract of the de fendant

shall be a

dmitted as proof of

any prio r convic ti on. Any person sentenced under this subsection (d) who receiv es a ter m of pr obati on or c ondi tion al dis charge

must serve a minimum term of either 480 hours of community servic e or 10 days of imprisonment as a cond

it io n of the probation or conditional discharge. This mandatoryNo. 2--07--0111

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minimum term of im

prisonme nt or assig nment of c ommunity

service may

not be suspended or reduced by

the court." Pub. Act 94--116, §5, eff. January 1, 2006. As pertinent here, Public Act 94--116 also amended subsection (c--1) of the DUI statute as follows: "(2) A person who violates subsection ( a) a third tim e , if the third violation occurs during a period in which his or her driving privilege s are revoked or suspended where the revocation or suspension was for a violation of subsection (a), Section 11--501.1, paragraph (b) of Section 11--401, or for reckless homicide as defined in Section 9--3 of the Criminal Code of 1961, is guilty of a Class 2 Class 3 fe lo ny. * * * (3) A person who violates subsection (a) a fourth or subsequent time, if the fourth or subsequent

viol ation occurs durin g a perio d in wh ich hi s or he r driv ing privileges are revoked or suspended where the revocation or suspension was f or a violation of subsection (a), Section 11--501.1, paragraph (b) of Section 11--401, or for

reckless homicide as defined by Section 9--3 of the Criminal Code of 1961 , is guilty of a Class 2 fe lony and is not elig ible for a sentence of probation or conditional discharg e. " Pub. Act 94--116, §5, eff. January 1, 2006. Public Act 94--609, en ac te d f ou r d ays later, with the same effective date of January 1, 2006, includes all of the subsections of the D UI statute. I t contains the following version of subsection (d)(2): "Except

as provided in this paragraph (2), a person convic ted of aggravate d driving under the influence of

alcohol, other dr

ug or dr ugs, or intoxicatin g compo und or co mpounds,No. 2--07--0111

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or any combination there of is guilty of a Class 4 felony. For a vio lation of s ubparag raph (C) of paragraph (1) of this subsection (d), the defe ndant, if sentenc ed to a term of

imprisonme

nt, shall be sentenced to not less than one y ear nor m ore than 12 years. A ggravated driving under the influe nce of a lcohol, other drug or drug s, or intoxic ating c ompound or compound s,

or any combination

thereof as defined in subparag raph (F) of

paragraph (1) of this subsection (d) is a Class 2 felony, for whic h the defendant, unless the court determines that extraordinary

circumst

ances exist and require probation if sentenced to a term of imprisonment , shall be sentenced to: (A) a term of imprisonment of not less than 3 years a nd not more than 14 yea

rs if the violation resulted in the death of one person; or (B) a ter m of imprisonment of not less than 6 year s and not more than 28 ye ars if the violation resulted in the deaths of 2 or more persons. For any prosecution under this subsection (d), a certified copy of the driving abstract of the defendant sha ll be admitted as proof of any prior conviction. Any person sente nced under this subsection (d) who receives a te rm of probation

or condition al discha

rge mu st s erve a m

inimum ter

m of eithe

r 480 hour s of community service or 10 days of imprisonment as a condition of the probation or conditional discharge. This mandatory minimum term of imprisonment

or assignment of community service may not be suspended or reduced by the court." Pub. Act 94--609, §5, eff. January 1, 2006. Public Act 94--609 contains subsection (c--1) as it read be fore the enactment of

Public Act 94--116. The language re moved by section 94--116 is no t ita lici zed, and th e langu age that Public Act 94-- 116 adde d is absen t, not stric

ken out. Subsection (d)(1)(F) of the DUI statute is the same

in both public acts. It states that a person commits aggravated DUI

when, in committing DUI, he is involved in a motor vehicle , snowmobile,No. 2--07--0111

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all-ter rain vehicle, or watercraft ac cident that results in the d eath of another person and the commission of

DUI is a proxima

te cause of the death. Pub. Act 94--116, §5, eff. January 1, 2006; Pub. Act 94--609, §5, eff. January 1, 2006; see 625 IL

CS 5/11--501(d)(1)(F) (West 2006). Defendant co ntends tha

t, althoug h Public Ac t 94--116

amended subsecti on (d)(2 ) so as to make aggravated DUI

a Class 2 felony, Public Act 94-- 609 undid this change. Defendant observes that, in Public Act 94--609, subsection (d)(2) lacks the langua ge that Public Ac t 94--116

added to make aggravated DUI

a Class 2 felony. De

fendant asserts that, because the two acts ca nnot be reconciled, the latter controls, a n d he must be resentenced for a Class 4 felony . Further, he

ma in ta in s, th e r ul e o f l en it y re qu ir es an y am bi gu it y to be re so lv ed in fa vo r o f t he le ss er pe na lt y. We begin w ith sectio n 6 of the St a tute on S tatutes (5 IL

CS 70/6 (West 2006)), which, as pertine nt here, provides : "Two or more Acts which relate to [the] same subject matter and which are enacted by the same General Assembly

shall be construed together in such a manner as to giv e full effect to each Act except in case of an irrec oncilable con flict. In c ase of a n irrec oncilabl e conflic t, the Act

last acted upon by the G

eneral Assembly

is controlling to the extent of such conflict. *** An irreconcilable conflict between 2 or more Acts which amend

the same section of

an Act exists o nly

if the ame

ndatory Acts make

inconsiste

nt chang es in

the sec tion as it theretofore existed." 5 IL CS 70/6 (West 2006). If two acts may

be constr ued so tha

t both may stand, we must do so. People ex rel. Dickey v. Southern Ry. Co. , 17 I

ll. 2d 550, 5 55 (1959) ; People v. Caraba llo , 231 Ill. App. 3d 685, 687-88No. 2--07--0111

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(1992). Our ultimate goal is to effectuate the intent of the leg islature, which controls over "surface inconsistencies" between two acts. Dickey , 17 Ill. 2d at 554. Public Act 94--609 sets out subsection (d)(2) as it existed before Public Act 94-- 116 wa s enacted. Public A ct 94--116's amended subsection (d)(2) inc orporates its amended subsection (c--1 ) , and Public Act 94--609 omits the pertinent changes to subsection (c--1) . Thus, the acts do confli ct. However, we hold

that they do not con

flict irr econcil ably

and, to ef fectua te the leg islature 's inten

t, we conclude that Public Act 94--609 does not undo Public Act 94--116. We note that Public Act

94--609 does not explicitly repeal the amendments that Public Act 94--116 made; any re

peal is by implication, from the omission of parts of subsec tion (d)(2) and the omission of

strikeout marks from the corresponding para graphs of subsection (c--1). Per the second paragraph of section 6 of the Sta

tute on Sta

tutes, an irreco ncilable

conflic t betwee

n these tw o acts exists only if they

make inconsistent changes in the DUI statute "as it theret

ofore e xisted." 5 IL

CS 70/6 (West 2004 ). The re spects in which the

two acts e

xplicitly amend the original DUI

statute are not inconsiste

nt. Public Act 94--6 09 ma k es a limited change to subparagr aph (F) of subsection (d)(1) of the DUI stat ute. T hat ch ange is separ ate fro m those mad

e by Public Act 94-- 116. Thus, under section 6 of the Statute on Statutes, the inconsistencies are not irreconc ilable. More over , we believe that, had the legislature consc iously intended to repea l what it had passed fo ur da ys earlier , it proba bly would hav e done so

explicitly by striking out the lang

uage that Public Act 94--116 had added to subsection (d)(2) and by restoring, through underlining, the langua ge that Publ ic Act 94--11 6 had stri cken fr om subsec tion (c-- 1). We note that the tw o acts

were passed o nly four d ay s apart, sugge sting tha t the dra fters of Public Ac t 94--609 simply overlooked what

had just been added by

Public Act 94--116. Such an in ferenc e is more p lausibleNo. 2--07--0111

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than positing that the legislators had a sudden chang e of heart but chose to express it by passive indirection. It is true that the general rule is that, when an act is amended

so as to read as it is repeated in the amen datory

act, por tions of the

old law not repeated are

deemed repealed. Caraba llo , 231 I ll. App. 3d at 687. However, this rul e must yield to the command of section 6 of the Statute on Statu tes, as we ll as the imperatives of harmonizing legislative acts if rea sonably possible and effectuating the legislature 's intent (see Caraba llo , 231 Ill. App. 3d at 687). Furthermore, for an act to repeal an earlier one by

implication, there must be "such a total and manifest repug nance th at the two cannot st and to gether." Dick ey , 17 Ill. 2d at 555. We do not believe that that is the case he re. The two acts "were

intended to make se

parate and distin ct chang es"

to the DUI statute and, thus, may "be given effect wit hout incon sistency." Dickey , 17 Ill. 2d at 555. Public Act 94--116 amended the DUI statute so as to raise a ggra vated DU I fr om a Class 4

felony to

a Clas s 2 fel ony. The ch ange mad e by Publ ic Act 94--6 09 was much n arrowe r, lim itin g t h e discretion of a trial court

to impose probation in the specific type of case in which the defend ant's commission

of DUI proximatel

y c auses a f

atal ac cident. Public Act 94-- 609's me re omissi on of the chang es made b y Pub lic Act 94 --116 is indisting uishable from the similar superficial inconsistency present in Dickey . There, the legislature pa ssed an act th at, among other thin gs, ame

nded a sta

tute to g rant sch ool distric ts the auth ority to levy a tra nspor tatio n tax. A second

act omitte d the gr

ant from t he statute . The supr

eme cour t held that, because

the broa d purpose of the fir st act wa s s eparate and di stinct from the much narrower purpose of the se cond ac t, "to adjust educational and building rates for certain districts," the secondNo. 2--07--0111

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did not repeal the first by implication. Dickey , 17 Ill. 2d at 555-56. Here, the br oad p u rposes of Public Act 94--116 may c oexist with the limited and distinct scope of Public Act 94--609. Defendant relies on People ex rel. Hines v. Baltimore & Ohio Southwestern R.R. Co. , 366 Ill. 318 (1937), to argue that the two acts are irreco ncilably inconsiste

nt. In Hines , the legislature passed three consecutive acts amending a section of a statute that limited tax levies by counties

. All three acts set forth the section, as amended, in full. The f irst act created an exception to the taxation limit for levies to fund relief for the blind. The second act created a similar exception for poor relief but omitted the exception for relief for the blind. The third act created an exception for "mother s' pension fund [s]" but omitted the other two exception s. Hines , 366 Ill. at 321. None of the acts expressly repealed any other act. The supreme court held that the third amendatory act conflicted irreco ncilably with the prior

two acts and thus abolished the other two exception s, meaning that the original tax limit still applied

to levies for the first two purposes but not to levies for mothers' pension funds. The court explained that the third act repeated all of the original act other than the two exceptions that were created by the

two previous amendatory acts, and it concluded that the three amendatory acts were "obv io usly repugnant as to the subject matter of exceptions." Hines , 366 Ill. at 322. Alth ough Hines bears some resemblance to this case, we note tha t, in Hines , the three amendatory

acts had similar

purposes and were all focused on the narr ow matter of exceptions to the taxation limit established by a particular statutory section. Thus, the acts did not have separate and distinct purposes as did those in Dickey or those here. Also, Hines , like Dickey , was decided before the legislature enacted what is now section 6 of the Statute on Statutes. F inally, to the extent that Hines is inconsis tent with Dickey , we follow Dickey , the more recent opinion of

our supre me court

. For the foregoing r

easons, the judgment of the circuit court of L ake County is affirme d.No. 2--07--0111

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Affirmed. BOWMAN and BURKE, JJ., concur.