Docket Nos. 85524, 85532 cons.–Agenda 6–May 1999.

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.

Opinion filed November 18, 1999.

	JUSTICE HEIPLE delivered the opinion of the court:

	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. 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.

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.

BACKGROUND

	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 (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. 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. We granted

leave to appeal in order to resolve this conflict in the appellate

court.

ANALYSIS

	When Public Act 89–428 was held unconstitutional by this

court’s ruling in Johnson v. Edgar, 176 Ill. 2d 499 (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 (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 5/111–5 of

the Code of Criminal Procedure 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 (1988).

	People v. Ryan, 117 Ill. 2d 28 (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. 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.  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, 172 Ill. 2d at 37.

	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.

CONCLUSION

	For the above reasons, we affirm the judgment of the

appellate court in cause No. 85524 and reverse the judgments of

the appellate and circuit courts in cause No. 85532.

No. 85524–Affirmed.

No. 85532–Judgments reversed.

	JUSTICE RATHJE, dissenting:

	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 (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 framework, the error of

the majority’s conclusion becomes obvious.

CONSTITUTIONALITY

	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 following:

			“[T]he accused was 17 years of age or over and

commits an act of sexual penetration with a victim who

was under 13 years of age when the act was committed.”

For the purposes of this dissent, I will refer to this language as “the

offense.” At all relevant times in these cases, the offense was part

of the Illinois Compiled Statutes.

	The offense originally appeared in section 12–14(b)(1) of the

Criminal Code of 1961 (720 ILCS 5/12–14(b)(1) (West 1994))

and was one of several different ways in which a person could

commit aggravated criminal sexual assault. Public Act 89–428

moved the offense from the aggravated criminal sexual assault

statute and designated it the separate offense of predatory criminal

sexual assault of a child. The offense was then given the new

statutory section number 12–14.1(a)(1) (720 ILCS 5/12–14.1(a)(1)

(West 1996)). In other words, Public Act 89–428 merely moved

the relevant statutory paragraph one section over and gave it a new

title and number.1 The legislature was not creating a new offense; it was merely giving an old offense a new name. When this court

invalidated Public Act 89–428 on single subject grounds, the law

was restored to its previous state. Thus, the offense was always

part of the aggravated criminal sexual assault statute.

	The offense has not been held unconstitutional. There is

nothing unconstitutional about forbidding persons over 17 years

of age from committing acts of sexual penetration with persons

under 13 years of age. When the majority states that the offense

was held unconstitutional, what the majority really means to say

is that the Public Act changing the title of the offense was passed

in violation of the single subject clause of the Illinois Constitution.

AMENDMENT OF THE CHARGING INSTRUMENTS

	The majority exalts form over substance in holding the defects

in the charging instruments to be substantive rather than formal.

The majority’s entire analysis of this issue is the simple assertion

that failure to charge an offense is a substantive defect. I have no

quarrel with this assertion, except that it does not apply to these

cases.

	The majority opinion contains a significant glaring omission:

any analysis of the law that pertains to defects in indictments,

specifically which types of defects are substantive and which are

formal. In fact, it would be impossible for the majority to discuss

the applicable law and reach the conclusion it reaches.

	The policy of the courts is to disregard mere technical

objections to a charge and to require only that the charging

instrument states the essential elements of the offense. People v. Cazares, 86 Ill. App. 3d 612, 615 (1980). Charging instruments may be amended at any time to correct formal defects; a formal

defect is one that does not alter the nature and elements of the

charged offense. People v. Patterson, 267 Ill. App. 3d 933, 938 (1993).

	The rule is well established in Illinois that an incorrect

statutory citation in a charging instrument is a formal defect when

the defendant suffers no prejudice. See, e.g., Ryan, 117 Ill. 2d at 36-37 (error in informations citing statute that did not exist was

not fatal because defendants suffered no prejudice); People v. Dunskus, 282 Ill. App. 3d 912, 917 (1996) (“An error in the citation of the statute giving rise to the charge is merely a formal

defect that is subject to amendment”); People v. Melton, 282 Ill. App. 3d 408, 415 (1996) (“Although the statute cited in the

charging documents was no longer in effect, the criminal offense

of child endangerment was still embodied in the Criminal Code.

Accordingly, defendants’ claim that they were convicted of a

nonexistent crime is without merit”); People v. Witt, 227 Ill. App. 3d 936, 944 (1992) (“Where the language of the indictment

sufficiently informs a defendant of the charges against him, and

defendant cannot demonstrate any prejudice resulting from an

incorrect statutory citation, the defect is formal and does not

warrant reversal”); People v. Harris, 205 Ill. App. 3d 873, 875-76 (1990) (because the language of the charge was not altered, there

was no error when the State was permitted to amend the complaint

to change the statutory section); People v. House, 202 Ill. App. 3d 893, 904-05 (1990) (“An error in the citation of a statutory

provision is a formal rather than substantive defect, when the

amendment does not affect the substance of the charge”); People v. Boyd, 87 Ill. App. 3d 978, 982 (1980) (“a formal defect, such as an incorrect citation of the criminal statute violated, does not

require or warrant reversal of a conviction unless the defendant

was prejudiced by the miscitation”).

	As the majority correctly notes, the failure of a charging

instrument to state an offense is a substantive defect. The failure

to state an offense means that the charging instrument left out

some crucial element so that the allegations do not state a crime.

For instance, in People v. Johnson, 43 Ill. App. 3d 559 (1976), an indictment charged the defendant with unlawful use of weapons

in violation of section 24–(a)(10) of the Criminal Code of 1961

(Ill. Rev. Stat. 1975, ch. 38, par. 24–1(a)(10).) That section made it a crime to carry a loaded weapon, but the indictment left out the

word “loaded.” Therefore, the court held that the indictment

contained a substantive defect because it did not state an offense. Johnson, 43 Ill. App. 3d at 561. See also, e.g., People v. Tucker, 131 Ill. App. 2d 598, 599 (1971) (complaint for driving under the

influence of intoxicating liquor was defective for leaving out the

phrase “of intoxicating liquor;” the State could not amend

indictment because it failed to state an offense).

	The question that must be asked is which of these principles

applies to this case. Did the charging instruments fail to state

offenses or did they contain incorrect statutory citations? The

charging instruments alleged that the defendants were over 17

years of age and committed acts of sexual penetration with victims

under 13 years of age. These charging instruments properly

charged the defendants with the offense. The effect of this court’s

decision in Johnson is that the offense was always part of the aggravated criminal sexual assault statute, and therefore the

charging instruments should have used the term “aggravated

criminal sexual assault” rather than “predatory criminal sexual

assault of a child.” Although the charging instruments properly

stated offenses, the State, through no fault of its own, cited the

wrong statute. I ask my colleagues in the majority to open their

1994 statute books, read section 12–14(b)(1) of the Criminal Code

of 1961, and explain to me how these charging instruments did not

state offenses.  As stated previously, at all relevant times in these

cases it was a Class X felony for a person over 17 years of age to

commit an act of sexual penetration with a victim under 13 years

of age. The only question there has ever been is whether section

720 ILCS 5/12–14(b)(1) and the title “aggravated criminal sexual

assault” or section 720 ILCS 5/12–14.1(a)(1) and the title

“predatory criminal sexual assault of a child” is the correct

citation.

	In People v. Ryan, 117 Ill. 2d 28 (1987), the State charged the defendants with unlawful use of weapons by a felon, but cited a

statutory compilation that did not contain that offense. The trial

judge ruled that the informations did not state offenses. This court

reversed, holding that the citations were not so misleading that the defendants could have been prejudiced by them. Writing for a

unanimous court, Justice Miller explained that, although the State

cited a statutory compilation that predated the existence of the

offense, the defendants were given fair notice of the nature and

elements of the charges against them. Because the defendants

suffered no prejudice, the citation to a nonexistent statute was not

fatal. Ryan, 117 Ill. 2d at 36-37.

	 Allowing the majority opinion and Ryan to co-exist violates our obligation to provide the lower courts with clarity of decision.

The rule now established is as follows: If the State carelessly and

mistakenly cites a statute that does not exist, the defect is formal

and does not warrant reversal (Ryan); if the State through no fault of its own cites a statute that does not exist, the defect is

substantive and requires reversal (Tellez-Valencia). We are doing a true disservice to the lower courts by expecting them to reconcile

these two decisions.

	The majority argues that Ryan is distinguishable. I agree. In Ryan, if the defendants or their attorneys would have looked up the statute the State cited in the charging instruments, they would

have found no such statute. Thus, a question existed whether the

defendants were given fair warning of the charges against them.

By contrast, if defendants Tellez-Valencia and Moore or their

attorneys had checked the statute cited in their charging

instruments, they would have learned that they were charged with

Class X felonies for being over 17 and committing acts of sexual

penetration with victims under the age of 13. Thus, the distinction

between the two cases is that the defendants in Ryan were at least arguably subjected to potential prejudice, yet this court still found

the defects to be formal, while the defendants in the cases now

before this court suffered no prejudice, yet this court holds that the

defects are substantive. The majority’s statement that the

defendants in this case, unlike the defendants in Ryan, were charged with an offense that did not exist is simply untrue. At the

time defendants were accused of sodomizing children, the exact

statutory language the State cited in the charging instruments was

in effect in section 12–14(b)(1) of the Criminal Code of 1961 (720

ILCS 5/12–14(b)(1) (West 1994)). 

	The majority relies solely on an appellate court decision,

People v. Wasson, 175 Ill. App. 3d 851, 854-55 (1988), in which the court held that charging the new aggravated criminal assault

statute rather than the old aggravated indecent liberties with a

child statute was a substantive defect. Assuming arguendo that Wasson was correctly decided, it is distinguishable because, as the court clearly explained, the law governing sex offenses was

substantively changed by the enactment of the criminal sexual

assault and abuse law of 1984. Wasson, 175 Ill. App. 3d at 854. The State sought to substitute one statute for another that was not

the same. Aggravated indecent liberties with a child was

committed when a person over the age of 17 committed an act of

sexual intercourse with a child under the age of 12 (Ill. Rev. Stat.

1983, ch. 38, par. 11–4.1(a)(1)(A)), while aggravated criminal

sexual assault was committed when a person over the age of 17

committed an act of sexual penetration with a person under the age

of 13 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12–14(b)(1)). By

contrast, the change from aggravated criminal sexual assault to

predatory criminal sexual assault of a child was merely a change

in statutory titles and section numbers. Unlike the statutes at issue

in Wasson, the exact same language defined both offenses.

	Interestingly, the charging instrument in Moore has already been amended once to reflect the change in the law. The State filed

an information charging defendant Moore with committing

aggravated criminal sexual assault. When the State determined

that the name of the offense had been changed to “predatory

criminal sexual assault of a child,” the trial court allowed the State

to amend the information to charge the new title and section

number. The majority does not address whether this first

amendment was also improper.

	The defendants in these cases were given fair warning of the

charges against them. The defects in the charging instruments

were formal because they did not alter the nature and elements of

the charged offense. Patterson, 267 Ill. App. 3d at 938. The defendants would suffer no prejudice by allowing the State to

amend the charging instruments to reflect the proper statutory

titles and section numbers. I invite any member of the majority to explain how the defendants would be prejudiced. I would

particularly like to hear how the defendants were not given fair

warning of the charges against them, and how the defendants will

prepare their defenses differently now that they know that the

name of the charged offense is “aggravated criminal sexual

assault” rather than “predatory criminal sexual assault of a child.”

	The defendants were tried and convicted on the basis of

charging instruments that accused them of Class X felonies for

being over 17 years of age and committing acts of sexual

penetration with victims under 13 years of age. The majority holds

that the convictions should be reversed. The effect of this decision

is that the defendants will be retried under new charging

instruments that will charge the defendants with Class X felonies

for being over 17 years of age and committing acts of sexual

penetration with victims under 13 years of age. I cannot imagine

a greater waste of judicial resources.

	CHIEF JUSTICE FREEMAN joins in this dissent.