THIRD DIVISION December 5, 2007

No. 1-05-4073

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) LEONTEA CALHOUN, ) Honorable ) David P. Sterba, Defendant-Appellant. ) Judge Presiding. PRESIDING JUSTICE QUINN delivered the opinion of the court: Defendant Leontea Calhoun entered a plea of guilty to two counts of reckless homicide and was subsequently sentenced to concurrent terms of 20 years’ imprisonment. On appeal, defendant contends that the circuit court violated his due process rights by failing to provide him with the opportunity to choose to be sentenced under the statute in effect at the time of the offense or the law in effect at the time of sentencing.

BACKGROUND Defendant was charged by indictment with four counts of reckless homicide and two counts of felony aggravated driving under the influence. On April 4, 2005, the circuit court conducted a plea hearing where defendant indicated his desire to plead guilty to two counts of reckless homicide. He further1-05-4073

- 2 -

indicated that he understood that no agreement had been made with the State regarding a sentencing recommendation or with the court as to what sentence would be imposed. During the plea proceedings, the court admonished defendant that reckless homicide was a Class 2 felony, punishable by a penitentiary sentence within the range of 6 to 28 years and a 2- year period of mandatory supervised release. The court then admonished defendant pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402). The factual basis for defendant’s plea showed that about 3:35 a.m. on December 28, 2002, defendant was driving a vehicle with a blood alcohol content of 0.268, three times above the legal limit. Defendant ran a red light at the intersection of 111th Street and Ridgeland Avenue and struck the vehicle occupied by Noell and Nicole Cahill, causing their deaths. The court determined that defendant’s plea was made knowingly and voluntarily and that the factual basis supported the plea; then it entered findings of guilty on the two offenses and continued the case for sentencing. On November 16, 2005, the court sentenced defendant to concurrent terms of 20 years’ imprisonment. Defendant subsequently filed a motion to reconsider his sentence, arguing that it was excessive and that the circuit court failed to adequately consider the mitigating evidence. The court denied the motion.1-05-4073

- 3 - ANALYSIS In this appeal, defendant first contends that his cause should be remanded for a new sentencing hearing because the circuit court violated his due process rights by failing to inform him of his right to choose to be sentenced under the law in effect at the time the offense was committed or the law in effect at the time of sentencing. Defendant acknowledges that he failed to raise this issue in his written posttrial motion to reconsider his sentence, but he argues that we should review the issue as "plain error" and because the error resulted from the ineffective assistance of his plea counsel. In the context of a sentencing hearing, a reviewing court may consider a forfeited error under the plain error doctrine when the evidence is closely balanced or the error is so fundamental that it may have deprived the defendant a fair sentencing hearing. People v. Hall , 195 Ill. 2d 1, 18 (2000); People v. Thomas , 178 Ill. 2d 215, 251 (1997). For the reasons to follow, we do not find this to be such a case. A defendant is "entitled to be sentenced under either the law in effect at the time of the offense or the law in effect at the time of sentencing." People v. Hollins , 51 Ill. 2d 68, 71 (1972). A defendant’s due process rights are violated if he is not advised of his right to elect the statute under which he should be sentenced and he does not expressly waive that right. Hollins , 51 Ill. 2d at 71.1-05-4073

- 4 -

"[Where] any punishment is mitigated by the provisions of a new law, defendant can consent to the application of the new provision if it became effective prior to his sentencing." People v. Land , 178 Ill. App. 3d 251, 260 (1988). If, however, the newly enacted statute changes the nature or substantive elements of an existing offense, rather than merely reducing the applicable punishment, defendant is not entitled to choose the statute under which he may be sentenced and may be convicted and sentenced under the law in effect at the time the offense was perpetrated. People v. Martinez , 371 Ill. App. 3d 363, 371 (2007), citing Land , 178 Ill. App. 3d at 260-61. On the date of the offense (December 28, 2002) in this case, section 9-3 of the Criminal Code of 1961 classified reckless homicide as a Class 3 felony, punishable by two to five years’ imprisonment. 720 ILCS 5/9-3(d)(2) (West 2000). In addition, section 9-3(e) of the Criminal Code stated that in cases involving reckless homicide in which the defendant was determined to have been under the influence of alcohol or drugs as an element of the offense, the offense was a Class 2 felony, for which a person, if sentenced to imprisonment, shall be sentenced to a term of not less than 3 years, nor more than 14 years. 720 ILCS 5/9-3(e) (West 2000). On July 18, 2003, approximately 21⁄2 years prior to the date of sentencing, the Illinois General Assembly amended section 9-3 of the Criminal Code to reflect that reckless homicide generally1-05-4073

- 5 -

remained a Class 3 felony punishable by two to five years’ imprisonment. 720 ILCS 5/9-3(d)(2) (West 2004). Under Public Act 93-213 (Pub. Act 93-213, eff. July 18, 2003), section 9-3(e), which previously had raised reckless homicide involving driving under the influence of alcohol or drugs from a Class 3 to a Class 2 felony, punishable by 3 to 14 years’ imprisonment, was eliminated. Based on that development, defendant contends that he was prejudiced by the court’s failure to advise him that he had the right to choose between the two sentencing options where he received a sentence that was four times greater than the maximum sentence permitted under the law at the time of sentencing. This same argument was raised and rejected by this court in Martinez , 371 Ill. App. 3d at 374-75. In Martinez , 371 Ill. App. 3d at 373-74, this court recognized the general entitlement of defendant to be sentenced under the law in effect at the time of the offense or at the time of sentencing, but found that the substantive changes made to the reckless homicide statute under Public Act 93-213 precluded that option. We also found that the Act repealed parts of section 9-3 of the Criminal Code (720 ILCS 5/9-3(d)(2) (West 2000)), which affected the nature and substance of the reckless homicide statute, and noted that the GeneralAssembly had created a new category of offense under the drivingunder-the-influence statute replacing the provisions eliminated from the reckless homicide statute by the Act (see 625 ILCS 5/11-1-05-4073

- 6 -

501(d) (West 2004)). Martinez , 371 Ill. App. 3d at 374. We also concluded that the General Assembly did not intend the punishment to be less stringent for those who drive under the influence of alcohol or drugs and cause death and, accordingly, that defendant was not entitled to take advantage of the more favorable sentencing provisions created by the Act. Martinez , 371 Ill. App. 3d at 374. The same result was obtained in People v. Lush , 372 Ill. App. 3d 629, 637-38 (2007), where the Fourth District agreed with the holding and reasoning set forth in Martinez . In that case, defendant raised the same due process issue, and the court determined that because Public Act 93-213 resulted in substantive changes to the reckless-homicide statute, defendant was not entitled to elect to be sentenced under section 9-3(d)(2) of the Criminal Code (720 ILCS 5/9-3(d)(2) (West 2004)), the more favorable reckless-homicide sentencing provision created by Public Act 93-213. Lush , 372 Ill. App. 3d at 638. We find no reason to depart from the reasoning or conclusion drawn in Martinez or Lush and likewise find that, based on the substantive changes made to the reckless homicide statute, defendant was not entitled to choose under which statute he would like to be sentenced. Martinez , 371 Ill. App. 3d at 375. We thus find no error by the circuit court to invoke the exception to the waiver rule. Thomas , 178 Ill. 2d at 251-52.1-05-4073

- 7 -

Defendant further claims that this court should not impute waiver to his sentencing claim because his trial counsel was ineffective for failing to ensure his ability to exercise his legal right to be sentenced under the law in effect at the time of sentencing and for failing to preserve this issue in the motion to reconsider his sentence. The State responds that because defendant was not entitled to be sentenced under the law in place at the time of sentencing, his counsel was not ineffective for not informing him of the alleged claim or raising it in the postplea motion. To prevail on a claim of ineffective assistance of counsel, defendant must show that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance. Strickland v. Washington , 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Where defendant fails to make the requisite showing under either prong of this test, his claim is defeated. People v. Palmer , 162 Ill. 2d 465, 475-76 (1994). To show prejudice, defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings likely would have been different. People v. Manning , 334 Ill. App. 3d 882, 892 (2002). As noted above, the substantive nature of the changes made by Public Act 93-213 to the Criminal Code precluded defendant1-05-4073

- 8 - -8- from choosing the statute under which he would be sentenced. Therefore, counsel was not remiss in failing to tell defendant that he had such a sentencing option, and defendant cannot establish prejudice from counsel’s failure to include this issue in his motion to reconsider his sentence. Defendant, therefore, cannot meet either prong of the Strickland test to establish his claim of ineffective assistance of trial counsel.

CONCLUSION For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. Affirmed. MURPHY, J., concurs. JUSTICE NEVILLE, dissenting: The majority holds that Calhoun was not entitled to make an election about whi ch sta tute he was sentenced under because the nature and substance of the reckless homicide statute was changed when the legislature promulga ted Public Act 93-213 and repealed subsections 9-3(b), (c), (e) and (e-5) and added subsections 9-3(e7), (e-8) and (e-9) to the reckless homicide statute. I disagree. I believe that a close reading of the reckless homicide statute reveals that while Public Act 93-213 repealed subsections 9-3(b), (c), (e) and (e-5) and added subsections 9-3(e-7), (e-8) and (e-9), the public act did not amend or change the elements of the offense of reckless homicide codified in subsection 9-3(a). Because Public1-05-4073

- 9 - -9- Act 93-213 did not amend or change the elements of the offense of reckless homicide codified in subsection 9-3(a), the l eg islature did not chan

ge the nature and sub stance of the statut e. Therefore, Ca l h oun ' s d ue proce ss ri gh ts
were vio lated when t he t rial co ur t did no t per mit him to elect t o be sent ence d eit her (1 ) u nder t he 2000 law in effe ct at t he t ime o f t he off en se, or ( 2) u

nd er th e 2 004 l aw i n e f f ec t at the ti

me of sentenci ng. See also Peo pl e v . Gan

carz , 36 9 I ll. A pp . 3d 15 4 ( 20 06 )

. Ac co r din gly, I r es pe ct fully di sse nt. PLA IN ERR OR R EVIEW The majo r it y ho lds t ha t t he de fen da nt is no t en t it le d t o pla iner ro r r eview ( 1) beca use t he evi dence was no t clo se ly

bal anced, an d (2) because the error was not so fundam ental that it depriv

ed t he de fend ant o f a fai

r se nt en cin g h ea r ing

. I dis ag r ee . I llino is la w is cle ar t ha t a d efe nd an t is entitled to be sen tenced under ei

ther the law

in e ffec t at t he t ime o f t he o ffen se o rt he law in eff ect at the ti me of sentenci ng. Peo ple v. Ho lli

ns , 51 Ill . 2d 68, 71 (1972). Moreover, a defenda nt’s due pro cess righ

ts are vi olated i f (1) he

is not advis ed of hi

s righ t t o elect the statut e under which he sho uld be sen tenc ed, an

d (2) h e does not ex pres sl y wai ve that ri ght. Ho lli

ns , 51 Ill . 2d at 71. "I f, howe ve r, t he ne wly e na ct ed st at ut e c ha ng es t he na t ur e o rsu bst an t ive ele men t s o f an ex ist in g off ense, [a ] d efenda nt ma

y b e convi cted and sen

tenced under the l

awin eff ect at the time the off

ense
was [commi

tt ed]." Pe o ple v. Martin

ez , 371 Ill . App. 3d 363, 371 (2 007). Th e Il l i noi s Suprem

e Court hasheld t hat "[t ]he i

m pos i ti on of an un au th ori ze d s en ten ce af f ects su bst an t ial r igh t s" an d t ha t pla in
err orrevi ew ex

tend s to such

matters. People v . Hicks , 181 Il l . 2d 541 , 545 (1 998). Because Pu blic A ct 9 3- 21 3 di d n

ot ch an ge th e n atu reor sub sta

n ti v e e l em en ts of the reckless h

omici de statut e, and because Cal

houn was n

ot permi tt ed to deci de under

whi ch l aw he would be sen

tenced, hi s sen

tence
was una uthori zed a nd a f f ected h i s su bstantial ri ghts

. Ac cord in

gly , I would review his sen

tence under the plai

n error doct rin

e. See Hic

ks , 181 Ill . 2d at 545. MA RTINEZ AND LUSH

DO NOT SUPPORT THE MAJORITY'S POSITION1-05-4073

- 10 - -10- The def enda nt argu es

th at h i s d ue proce ss ri gh ts were v i ol ate d w h en th e c our t f ai l ed to advi se h i m th at h e h ad th e ri gh t to choose between two sent encing o pt ions be cau se t he se nt ence he recei ved un de rt he 20 00 se nt en cin g la w was f our t im es greater than the m

axi mum sentence permi tt ed under the 2004 sen

tenci ng l aw. The majo r it y r ejects this argum ent and cites Peo ple v. Martin ez , 371 Ill . App. 3d 363, 371 (2007) and People v. Lush , 37 2 I ll

. Ap p. 3d 62 9 ( 20 07 ) , in sup po rt of it s po sitio n. I t hink t he major ity's r eliance o n Martin ezand Lush

is mi splaced. In Martin ez , th i s c our t h el d that a defend ant ’s du e pr oc ess r ight s we re not violat ed by t he ci rcuit court’s fai

lure to advi se hi

m of the option of recei

vi ng a sentence under the statut e that was in eff ect on the date o f the of

fen se or the stat ute that was in ef fect on the date he was

sentence d. Martin ez , 371 Il l . Ap p. 3d a t 371; 720 IL CS 5/9 -3 (West 200 0). The Martin ezcour t also hel

d that beca u se t he amend ments t o t he r eck less ho micide st at ut e we re subs t ant ive and t hus a ffect ed t he
na ture and s ubst ance of t he cr ime of re ckles s ho micide, t he de fendant was bar re d fro m choo sing under whi ch reckl ess hom i cide s tatute he

would be sen tenc ed. Martin

ez , 371 I ll . App. 3d at 374. The Martin

ezcourt noted that P ubl

ic Act 93-213 re pea led t he enha ncing el em ents (subs ections 9- 3(e) and (e-5)) in

the reckle ss hom

ic ide statut e wh en an in div

idual was convicted of reckless homi ci de whi l e i

ntoxi cated. Martin

ez , 37 1 I ll. Ap p. 3d at 37 4, cit ing Pu blic A ct 93

- 21 3, eff. Ju ly 18, 2003. Furthermore, the Martin ezcour t n oted

th at t he pu blic act amende d se ct ion 9 -3 of t he Crim in al Code by addi ng sev eral s ubsections (subse ctions 9-3(e-7), (e-8), (e- 9)), all of whi ch permi tt ed defendan

ts co nvi cted o f reckl ess homi

cide to be punish

ed as Cla ss 2 fe lo ns un der ci rcu m sta nc estha t we re n ot pe rm i tted priorto the amendm

ents. Martin

ez , 371 Ill . App. 3d at 374. La st ly, the Martin

ezco ur t fou ndthat t he l

egi slature created t he off

ense of aggravated driv

in g under t he infl uenc e and co dified it in t he I lli nois V ehicle Co de in o rd er t o r eplac e su bsec t ion 9 -3 (b) of t he Code, one of the sections that Publ ic Act 93-213 repeale d

i n the reckless

hom i cide s tatute. Martin

ez , 371 Ill. App . 3 d at 372 , c iting 625 ILC S 5 /1 1- 501 (d ) ( West 200 4) . Ac co rd ingto the Martin ezcou rt, the aforementioned am

endm ents were substant iv

e changes to t he off

ense of reckless

homi ci de that1-05-4073

1 Now 720 ILCS 5/9-3(a) (West 2004).

- 11 - -11- barred Ma rti n ez f rom tak i n g advan tag e of th e m oref av ora b l e s en ten ci n g p rov i si on s i n th e statu te in eff ect at t he t ime he was s ent enced. Martin ez , 371 Ill . App. 3d at 374. The Lush court agreed wit h t he h o lding and re as o ning o f Martin ez . Lush , 372 Ill . App. 3d at 638. I dis agree wi

th the ma jori ty's reli ance on the Martin

ezand Lush

cas es, wit h t he major ity's
re as oni n g a n d c on str uc ti on of th e reckl es s h om i ci de sta tute an d w i th the ma jori ty's concl usi on that t he repeal of sub sections

9-3(b), (c), (e) and (e-5) and the additions of sub sections 9-3(e-7), (e- 8) and (e -9 ) t o t he r eck less ho micide st at ut e affect ed t he su bst ant iveel em en ts of the crim

e of reckless hom i cide. The maj ori

ty f ai l s to sta te i n w hi ch su bs ec ti on of

th e reckl es s h om i ci de sta tute th e e l em en ts
arecodif ie d. The Ill

in ois Suprem

e Court r evi

ewed subs ection 9-3(a) of the reckl ess h omici de sta tute (Ill . Rev . Stat. 1987, c

h. 38 , par. 9-3 (a)) 1 and he l d tha t the el em en ts of r eckl ess hom i cide are
as follows: (1) that the in div idua l was operating a m

ot or vehicl e; (2) that the in div idua l
un int en t io na lly

cau sed a de at h while op er at ing t he vehicle; a nd ( 3) t hat t he ac t s which c aus ed t he de ath were perform

ed re ck l es sl y so as to crea

te a l i ke l i h ood of de ath or gre at b odi

l y h ar m to so me per so n. Peop l e v . Wi l son, 143 Ill . 2d 236, 245 (1991), ci ting Il l. Rev . Stat . 1987, ch. 38, par. 9-3( a)

. Acco rd ingto W i l son, th e e l em en ts of the of f ense of reckles s h

om i ci deare codi f i ed i n s ub se cti on 9-3(a)

. Wi

lso n , 143 I ll . 2d at 245. Whil e the supreme cour t has found that into xication is not an element of the off

ense of reckle ss hom

ic ide ( W i l son, 143 Ill . 2d at 2 45) , th e c ou rt did note that i ntox i ca ti on i s p rob ati ve of the i ss ueof reckl ess ne ss. Pe opl

e v . Sm i th , 149 Il l . 2d 558 , 563 (1 992). A l thou gh the W i l son

co ur t r ev iew ed t he 19 87 ve r sio n o f su bse ct io n 9

- 3( a) o f t he Cr imin al Cod e ( W i l son, 143 Il

l

. 2 d at 245), it should b e noted that t he l anguage is al

most i dentic al

in the 1987, 2000 and 2 004 ver sions of sub section 9-3(a) of the Cri mi nal Code. Compare Il

l. Rev . Stat . 1987,1-05-4073

2 "A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of driving of a motor vehicle, in which case the person commits reckless homicide." Ill. Rev. Stat. 1987, ch. 38, par. 9-3(a).

3 "A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle or operating a snowmobile, all-terrain vehicle, or watercraft, in which case the person commits reckless homicide." 720 ILCS 5/9- 3(a) (West 2000).

4 "A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, except in cases in which the cause of the death consists of the driving of a motor vehicle or operating a snowmobile, all-terrain vehicle, or watercraft, in which case the person commits reckless homicide." 720 ILCS 5/9- 3(a) (West 2004).

- 12 - -12- ch. 38, par. 9-3(a) 2 ; 720 ILCS 5/9-3( a)( West 2002) 3 ; 720 ILCS 5/9-3(a) (West 2004) 4 . Therefore, because the la

nguage i n the 1987, 2000 and 2004 v ersi ons of sub section 9-3(a) of the Cri mi nal Code is al m ost i de nti cal , i t i s c l ea r th at the e l em

en ts of the of f ense of reckles s h

om i cide di d n ot c han

ge af ter the l egi slatureprom

ulgated Publ

i c Act 93-21 3. Co mpar e I ll. Rev. Stat . 1987, ch. 38, par. 9- 3(a), 72 0 ILC S 5/9-3 (a) (W est 200 0); 7 20 IL CS 5/9 -3(a) (W est 200 4). Wh en Publ i c A ct 9 3-2 13 r

ep eal ed su bs ec ti ons 9-3 (b ), (c ), (e ) an

d (e -5) an d a men de d s ec ti on 9-3 and a dde d su bsec t ions 9- 3( e- 7) , ( e- 8) an d ( e- 9) t o t he r ec kle ss ho micid e s t at ut e, it did not change t he la nguage or substanti

ve el em ents thatar e c o difie d in sub section 9-3(a)of the Code . Moreover, when Publ ic Act 93-213 in

corpo rated the off

ense of aggravated

dr iving under t he influence int o t he Illinois Vehicle C od e ( 625 ILC S 5 /1 1- 501 (d ) ( West 200 4) , t her e wa s no ch an ge in t he su bst ant ive1-05-4073

5 Reckless homicide is a Class 3 felony. 720 ILCS 5/9- 3(d)(2) (West 2000).

6 For a Class 3 felony, the sentence shall be not less than two years and not more than five years. 730 ILCS 5/5-8-1(6) (West 2000).

7 Reckless homicide is a Class 3 felony. 720 ILCS 5/9- 3(d)(2) (West 2004).

8 For a Class 3 felony, the sentence shall be not less than two years and not more than five years. 730 ILCS 5/5-8-1(6) (West 2004).

- 13 - -13- el em en ts in subse ction 9-3(a), and there was n o need to change the el

em ents of reckl

ess h omici de because ag gr av

ate d d r iv in

g under the i

nf lue nce is a lesser-i

ncl uded off ense of reckle ss hom

ic ide

. Pe o ple v. Green , 294 Il

l . Ap p. 3d 13 9, 149 ( 1997) . Fi na l l y , i f them aj or ity

compared the 2000
ve rs i on of su bsec t ion 9 -3 (a ) o f t he Cr imi nal Co de t o t he 20 04 ve rsio n of su bsec t ion 9 -3 (a ) o f the Crim in al Co de, it w ou ld find

t hat t he class

and senten

ce f or the of f en se of reckl ess hom i cide we re not chan ged by Publ ic Act 93-213. Compare 720 ILCS 5/9-3(d)(2) (West 2000) 5 and 730 ILCS 5/5- 8-1(6) (West 2000) 6 with 720 IL CS 5/9-3(d)(2) (West 2004) 7 and 730 I LC S 5/5-8 -1(6 ) (West 2004)

. 8 Accordin

gly , the maj ority is i

n error when i

t holds that

Pu bli c Act 93- 213 chang ed t he substanti ve el em ents of the off

ense of reckle ss hom

ic ide

. CONCLUSION In co nc lus io n, Pu blic Ac t 93

- 21 3 d id not change t he language or t he elemen ts o f the off

ense of reckless h

omici de codi f

i ed i n s ub se cti on 9-3 (a) of the Cri m i na l Code a nd the Publ i c A ct di d n ot chan ge t he class of o ffense o r se nt ence for a pe rso n co nvi cted of reckless h omici de. Accordingly, I would hold that the trial court erred when it denied Calhoun the option of choosing between being sentenced under the 2000 sentencing la w in effe ct at the time of the offense or the 2004 sentencing law in effect at the tim e of sentencing, and I1-05-4073

- 14 - -14- would affirm his conviction, v aca te his sentence and remand his case for resentencing.