*1 CONCLUSION request to abandon the one- decline State’s We appellate court act, one-crime doctrine. hold that We aggravated erred in defendant’s criminal sexual the more assault convictionbased on home invasion to be vacating serious offense and in the sexual assault convic- burglary. tion remand this cause based on residential We to the trial court for a determination as to which sexual resentencing assault conviction will be retained and for in accordance with section 5—8—4 of Corrections (730 (West 2002)). Code ILCS affirm the We 5/5—8—4 judgment. appellate remainder of the court’s Appellate judgment part affirmed part; reversed cause remanded. (No. 105805 .
THE PEOPLE OF THE STATE OF ILLINOIS ex rel.
LISA MADIGAN, Petitioner, v. HONORABLE Respondents. al., JAMES B. et KINZER Opinion January filed *2 General, Attorney Springfield of Madigan,
Lisa (Michael Scodro, General, and Michael M. A. Solicitor Malamuth, Attorneys and Eldad Z. Assistant Glick General, counsel), for Chicago, petitioner. Watseka, Boyer, respondents. Ronald E. for judgment JUSTICE KILBRIDE delivered the court, opinion. with Thomas, Justice and Justices Gar- Fitzgerald
Chief man, judgment and Karmeier concurred in the opinion. concurred, Burke specially opinion,
Justice joined by Justice Freeman.
OPINION Attorney Madigan Illinois General Lisa filed an original Supreme mandamus action this court under (188 381), seeking Court Rule 381 Ill. 2d R. to vacate a Kyle sentence of court Kissack imposed upon under his the influence of alcohol conviction. petitioner contends that court supervision prohib ited by section of the Unified Code Cor (Code) (730 6—1(d)(3) (West 2006)), rections ILCS 5/5 — *3 because Kissack previously pled guilty driving to reckless as a result of a plea agreement. We hold that the sentence of court supervision by not authorized statute in these circumstances. we Accordingly, award the order of man damus.
I. BACKGROUND Kyle Kissack driving was under (625 (DUI) (West influence of alcohol ILCS 5/11 —501 2006)). 24, 2007, August On he entered a guilty plea that offense in the Iroquois County circuit court of the Honorable James B. Kinzer (respondent) sentenced him to 14 supervision. months sentence,
The State filed a motion to reconsider the that Kissack asserting previously had to reck- pled less as driving part plea agreement. of a The State (730 contended that section of the Code 6—1(d)(3) (West 2006)) ILCS prohibits sentence 5/5 — supervision of court for DUI when the defendant previ- ously pled guilty driving plea agree- to reckless under a State, therefore, ment. The Kissack’s maintained that by sentence was void because it was not authorized statute. respondent denied the motion to reconsider in a Respondent acknowledged
written order. section 5—6— 1(d)(3) provides that court is not authorized supervision if a defendant to reckless previously pled guilty driving as a plea agreement. Respondent initially result of a found, however, that a literal application 6—1(d)(3) would create an unconstitutional irrebut- that a reckless was presumption driving charge table Respondent justifica- reduced from a DUI. could find no treating previous driving tion for convictions of reckless identically and DUI of court on purposes DUI offense. subsequent legislature found that intended to Respondent treat to reckless and DUI identi prior guilty pleas cally only charge when a DUI was reduced to reckless Kuhn, driving. According respondent, People (1988), 2d 202 was there must be evidence “controlling: that the was the result of a involv (as charge to reduce the effect of the DUI ing an effort charge that the DUI recognition by to a the State opposed at trial and simply capable being proved was not reason).” dismissed for that that Kissack Respondent pled guilty noted in that case. A DUI was dismissed unclear, however. The reason for the dismissal was have been charge may that the DUI Respondent observed Accordingly, evidence. dismissed due to insufficient eligible for court found that Kissack respondent *4 6—1(d)(3). under section the order to The filed a motion to amend State (210 18), Ill. 2d R. Court Rule comply Supreme that the order did not contain the information asserting a circuit court declares a statute unconsti required when tutional. Kissack that the order did not declare responded Rather, the statute unconstitutional. the order was based 6—1(d). respondent’s on the construction of section 5— denied the State’s mo Following hearing, respondent tion respon to amend the order. There is no record of dent’s reasoning denying the motion.
The then to file petitioner moved this court for leave original an mandamus This court allowed the complaint. file the petitioner complaint parties to and ordered the to brief the The petitioner directing issues. seeks an order to respondent vacate the sentence of court supervi- impose sion and a sentence in accordance with the Code. petitioner The attached the complaint to the docket sheet showing disposition of Kissack’s previous The charges. entry docket in case number 2001—DT— 7, 2002, 160 for May states in pertinent part: jury “Case called for presence trial outside the jury. Jury waiver signed. pleads guilty Defendant to Reck- Driving, year less one supervision, plus fine of $350 costs of prosse $123.00[.] State moves to Nolle DUI pursuant 01DT160 agreement.” to entry 9, 2002, states, for May nolle pressed.” “Case
II. ANALYSIS may This court original jurisdiction exercise in man §4(a). damus 1970, VI, actions. Ill. Const. art. Mandamus is an to extraordinary remedy performance enforce the official duties nondiscretionary by public officer. 1350 Lake Shore Associates v. Healey,
(2006). granted Mandamus will be when the only petitioner relief, shows a right clear to a clear public duty act, authority clear of the official comply with the order. ex rel. Devine People Sharkey, (2006). 2d 616-17 Mandamus relief is if it improper *5 184 judgment
substitutes the court’s or discretion for that of (2008). 153, the official. 231 Ill. 2d 156 Montes, v. Holly proper settled, however, It is well that mandamus is a compelcompliance mandatory means to with the sentenc ing provisions of the Unified Code of Corrections. People (2005). 358, 216 Ill. 2d 362 Jorgensen, ex rel. Birkett v. plain language Petitioner contends that and 6—1(d)(3) purpose preclude a sentence of supervision court conviction of Kissack’s under the influence alcohol. Petitioner asserts that of should, therefore, this court enter a mandamus order directing respondent to sentence Kissack ac- cordance with the Code.
Respondent responsive did file a brief. In his not 6—1(d)(3) argues precludes brief, Kissack that section 5— supervision only previously court when the offender plea agreement reducing charge entered into a a of driv- ing driving. In under the influence of alcohol to reckless pled guilty case, this he and the State according Thus, Kissack, dismissed the DUI preclude supervision not does not reduced to reckless driv- because DUI ing.
Here, we must determine whether Kissack’s sentence of court is authorized under section 5—6— 1(d)(3) question presents case Code. This statutory subject novo review. construction to de (2006). People 393, The fundamental 223 Ill. 2d 402 Lewis, v. objective statutory is to ascertain and construction legislature. give 216 to the intent of the effect Jorgensen, legislative intent is Ill. 2d at 363. The best indication of ordinary statutory language given plain and mean its statutory language ing. 231 Ill. 2d at When Holly, applied plain unambiguous, as must be the statute statutory construction. to aids of written without resort (2008). may 228 Ill. 2d We Howard, People language by reading from a statute’s depart plain not limitations, the legisla into it or conditions exceptions, Lewis, 2d ture did not at 402. Courts express. than in the attempt should not to read a statute other Center, Care Inc. v. manner it was written. Rosewood (2007). Inc., Caterpillar, Section states: Code (c) provisions paragraph [pertaining “The to court supervision] apply shall not to a defendant violating [DUI] Section 11—501 of the Illinois VehicleCode provision or a similar of a local ordinance when previously defendant has been:
(1) convicted for a violation of Section 11—501 of the Illinois or a similar of a lo- provision VehicleCode any cal ordinance or similar law or ordinance of state; another or (2) assigned supervision for a violation of Section provi-
11—501 of the Illinois or a similar VehicleCode any sion of a local ordinance similar law or or ordinance state; of another or
(3) pleaded guilty stipulated sup- to or to the facts porting charge a guilty or a to a violation of Section 11—503 of the Illinois [reckless Vehicle Code driving] provision or a similar of a local ordinance or any state, similar law or ordinance another and the plea stipulation agreement.” or was the result of a plea 6—1(d)(West2006). 730 ILCS 5/5— Thus, section a defendant provides that 5— with DUI eligible is not for court if the defendant has previously pled guilty to reckless driv- ing as a result of a Under plea agreement. plain the language circumstances, of the statute in previ- these a ous guilty plea under a plea agree- only ment is the for a requirement barring sentence of supervision. court to
Contrary argument, plain language Kissack’s the of the statute require previous agree- does not ment to include a reduction of from DUI to reckless did not limit condi- legislature or phrase “plea agreement” any way.
tion the Kissack’s 6—1(d)(3)requires adding construction of section plain language condition to the of the statute. willWe plain language exceptions, not read into the of a statute expressed by legislature. limitations, or conditions not Lewis, See Ill. 2d at 402. recognized plea agreements
This court has
generally
original charge
result in a reduction of the
or
exchange
agreement
some other consideration in
for an
plead guilty.People Eckhardt,
v.
151-52
(1989).
pleading
The State’s offer of consideration
distinguishes
guilty
from a blind
Supreme
plea. Eckhardt,
Further,
Kissack
that this court’s deci
People Kuhn,
In
the State filed a direct
6—1(d)
finding
court
section
circuit
decision
5—
6—1(d))
(Ill.
par.
38,
Rev. Stat.
ch.
Code
1005—
grounds.
equal protection
Eckhardt,
unconstitutional on
at
The trial court determined that a
127 Ill. 2d
driving
pleading guilty to reckless
under a
defendant
as one who
committed the same conduct
driving.
guilty plea to reckless
Section
entered a blind
6—1(d)
groups of
treated those two
of the Code
5—
court,
however. The trial
there
differently,
defendants
fore,
equal protection
held that
the statute violated
Eekhardt,
This
that a blind
is the same
guilty plea
as a
Eck
quality
guilty plea by agreement.
of offense
hardt,
that
recognized
plea agree
In
conclusively
this court
resolved the
defendant’s equal protection
by finding
claim
groups at issue were not similarly
People
situated. See
(2007)
Whitfield,
(declining to apply
the rational basis test because the defendant could not
meet the
requirement
threshold
of showing that he and
he
group
used for comparison
similarly
were
situ
ated). This court nevertheless went on to find that sec
6—1(d)
tion
was rationally related to the state’s
5—
legitimate goal of promoting highway safety. Eckhardt,
In the construction of section 5— Thus, was not an raised as issue. this court did not engage plain language in a construction of the of that simply Instead, statute. we made statements the about broad focus of section in the context of 5— determining rationally whether it related to the was goal safety. promoting highway state’s legislative against A will classification be sustained any equal protection challenge an if collection of facts reasonably uphold can be the classification. conceivedto Village citing Eckhardt, 152, 127 Ill. 2d at Oak Lawn (1986). 104, Rosewell, Therefore, analysis in Eckhardt was not intended to be an all- 6—1(d)(3). encompassing The construction 5— 6—1(d)(3) analysis simply in was section Eckhardt 5— a broad statement of the focus of that section resolving rationally whether the was context statute promoting highway safety. related to We conclude Eckhardt does not control our construction of 6—1(d)(3) presented and, the issue was never because 5— accordingly,was never addressed in that case. inapposite. decision in Kuhn is also As
This court’s
Eckhardt, the issue in Kuhn was whether section 5—6—
1(d)(3)
(Ill.
par.
ch.
of the Code
Rev. Stat.
6—1(d)(3))
equal protection
is unconstitutional on
reviewing
grounds. Kuhn,
In this court did not address the 6—1(d)(3). simply held, in ac- tion of section We 5— parties’ agreement, cordance with the that the record did prior plea not indicate the defendant’s pursuant agreement. in to a The decision Kuhn was any plea agreement based on the failure to show existed plea agreement, in that case. In the absence of a there 6—1(d)(3) showing precluded was no that section a any 5— supervision. provide sentence of court Kuhn does not 6—1(d)(3). guidance on the construction of section 5— plain language sum, In we conclude that the of sec- 6—1(d)(3)precludes supervi- tion a sentence of court driving sion for under the influence of alcohol if the previously pled guilty driving defendant has to reckless plea agreement. phrase “plea agreement” under a The any way.Accordingly, not limited or conditioned in there requirement is no for the to reduce a charge driving under the influence of alcohol to reck- driving. less previously charged
Here, Kissack was in 2001 with by DUI and reckless The docket sheet submitted jury the State shows that the case was called for trial. pled guilty driving prior Kissack The to trial. nol-pros docket sheet also shows that the State movedto charge “pursuant agreement.” the DUI to Kissack exchange guilty plea received consideration in for his agreement reckless based on the State’s clearly record, therefore, dismiss the DUI The guilty plea establishes that Kissack’s was the result of a 6—1(d)(3) plea agreement. Accordingly, section 5— precludes a sentence of court for Kissack’s
current under the influence alcohol in these circumstances.
Finally, petitioner that section argues does not violate or create an equal protection provisions unconstitutional mandatory presumption. petitioner denying makes those to the order arguments response the State’s motion to reconsider the sentence. Kissack does not conclude that these constitutional respond. We are not this arguments properly before court. order,
In his never men- respondent expressly Moreover, equal protection guarantees. tioned he did not find that the created an unconstitutional manda- statute tory presumption. The asserted that respondent simply would create an unconstitutional if it presumption applied literally. irrebuttable were certainly express finding There is no of unconstitutional- ity respondent’s order.
Further, respondent the denied the State’s motion comply Supreme amend the written order to with Court (210 18). Rule 18 Ill. 2d R. Court Rule 18 sets Supreme forth for trial courts a statute requirements finding summarily unconstitutional. This court vacate and may a statute judgment declaring remand a circuit court unconstitutional if it fails to with Rule 18. 210 comply 302(c)(2). decline respondent’s Ill. 2d R. The decision to the order in with Rule 18 indicates amending accordance the unconstitu that he did not intend to declare statute on his respondent’s solely tional. The decision was based 6—1(d)(3). interpretation of section 5— the Additionally, Kissack does not contend are arguments is unconstitutional. Kissack’s statute case, In this directed at the of the statute. interpretation either properly a constitutional issue has not been raised the the statute unconstitutional by respondent declaring the Accordingly, of a on by argument party appeal. or an 6—1(d)(3) properly of is not constitutionality section 5— court, subject. to address that before this and we decline
III. CONCLUSION reasons, plain the we conclude that the foregoing For 6—1(d)(3) of section a sentence language precludes influ- for Kissack’s under the supervision ence has no discre- respondent of alcohol conviction. mandatory provisions tion to from the depart 6—1(d)(3). relief is Accordingly, granted mandamus the sentence of court directing respondent vacate and a sentence in accordance with supervision impose the Code.
Mandamus awarded. BURKE, specially concurring: JUSTICE I with agree majority that a sentence of court supervision is not authorized statute by under circumstances this case. I that a Accordingly, agree mandamus order should directing Judge issue Kinzer to vacate the sentence of court impose a sentence accordance with the My law. reasons for reaching conclusion, however, this differ from those expressed by majority.
Section of the Unified Code of Correc- provides: tions (c) provisions paragraph
“The [which authorize an supervision] order of shall apply not to a defendant violating Section 11—501 of Illinois VehicleCode or provision a similar of a local ordinance when the *** defendant has previously ijj £
(3) pleaded guilty stipulated sup- to or to the facts porting a charge or a to a violation of Section [reckless 11—503 of the Illinois Vehicle Code *11 driving] provision or a similar of a local ordinance or any state, similar law or ordinance of another and the or plea stipulation plea agreement.” was the result of a 6—1(d)(3)(West2006). 730 ILCS 5/5— contends, holds, State and the majority that the (3) “plea agreement” referred to in paragraph above any plea agreement, regardless means of its terms or Kyle Respondent, Kissack, that, however, basis. contends pursuant People Eckhardt, to our decision in v. Ill. 6—1(d)(3) (1989), interpreted 2d 146 has been supervision prohibited to mean that a sentence of court only previous plea guilty if the whereby the result of a a of driv ing under the influence was reduced or otherwise disposed point, agree respondent. of. On this I with
In Eckhardt we were asked to decide whether section 6—1(d)(3) guarantees equal protection violated (U.S. provided by both the United States Constitution XIV) (Ill. Const., amend. and the Illinois Constitution §2). I, Const. art. The defendant Eckhardt equal contended that section violated protection principles because it treated those who were driving pursuant plea agree found a of reckless differently ment than those who were convicted of the entering having gone same offense after a blind or respect eligibility trial, to their for on (driving subsequent influ a section 11—501 under the alcohol) charge. ence of
Addressing
equal
claim,
first noted that the
this
we
protection guarantee
prevent
does not
different classes of
people
being
differently,
long
treated
as
as there is
from
distinguishing
the class to which
reasonable basis
applies
the statute is
the law
from the class to which
People
inapplicable. Eckhardt,
151;
at
127 Ill. 2d
(1986).
said,
Thus, we
Coleman, equal
legislative
upheld against
will be
an
classification
reasonably
challenge any
protection
if
set of facts can
be
Eckhardt,
which will sustain the classification.
conceived
suspect
that, where a
Applying for between differentiating persons was a rational basis and those driving who have to reckless plea bargained entered a blind Plea plea driving. who have in a reduction of the initial bargaining typically results Thus, that who charge. persons plea we concluded bargained given agree- were some consideration for the ment which who entered blind plead guilty persons pleas did not receive. We further found that 6—1(d) was related to the state’s rationally legitimate 5— of goal promoting highway safety. We said: prevent repeat
“The thrust of this statute is to
drunk driv
ing
driving
endangering
offenders from
and
the lives of
highways.
legitimate goal
motorists on Illinois
This is a
Eckhardt,
police powers.”
is well within the State’s
We
state:
inquiry
“The next focus of
is whether
the denial of
who,
supervision
pursuant
plea agreement,
to those
to a
to,
pled guilty
stipulated
have
or
supporting
facts
of,
charge
or a
of
a violation of section 11—
(reckless
driving)
years
rationally
within the last five
is
goal
highway safety.
related to the
of
driving
Reckless
is a
(Ill.
1985,
9572,
B
par.
Class misdemeanor.
Rev. Stat.
ch.
503(b).) Driving under
the influence is a Class A
11 —
misdemeanor for a
first offense
addition to administra
(Ill.
tive penalties.
Rev. Stat.
ch.
11—
par.
501(c).)
prohibition
The obvious
focus of
of
6—1(d)
in section
Code Correc
found
of
Unified
preclude supervision
only
tions is to
not
to those who had
previously
influence,
been convicted
under the
charged
but also to those who had been
with that offense
plea bargained
and
the lesser
reckless
offense
A person
plea bargained
who has
to a
of reckless
position
person
is thus in a different
from a
who
plea
has entered a blind
to a reckless driving
We
6—1(d)
rationally
find that section
related to
safety.
legitimate goal
promoting highway
State’s
In
analysis
statute,
view of
purpose
our
of the
we find
added.)
equal protection
no
violation.”
Eck
(Emphasis
hardt,
In
to the
responding
equal protection
Eckhardt,
way
we construed section
in a
so,
preserve
constitutionality. Doing
which would
its
we
held that the
rationally
legitimate
statute was
related to a
state interest when
to “those who had
applied
been
[driving
under
influence]
*13
the
The
bargained
driving.”
lesser offense of reckless
that,
Eckhardt,
majority
simply
errs when it finds
“we
made statements about the broad focus of section 5—6—
1(d) in the context
whether
it was
determining
of
rationally
goal
promoting
related to the state’s
highway safety.”
The holds that the Eckhardt court “conclu claim sively equal protection by resolved the defendant’s similarly that the at issue were not situ finding groups 2d The then states that majority ated.” 232 Ill. at 187. find that the Eckhardt court “nevertheless went on to rationally was related to the state’s goal safety,” relegating legitimate promoting highway for the finding the Eckhardt court’s of a rational basis need not be followed. 232 legislation to mere dicta which Ill. 2d at I cannot agree. bargains
I that a who agree person plea who enters a driving differently person is situated than a and convicted of reckless driv- plea prosecuted blind or is But, the it is ing. recognized, why ap- as Eckhardt reason more propriate person plea bargains to treat who of the harshly (denying supervision) them is because the who to reck- presumption person plea bargains that was, fact, DUI, could have charged less with charge, on that but was able obtain been found for a is true opposite a reduction of that and is goes a blind or to trial person who enters case, In the presump- convicted of reckless these DUI that the was either not person tion is support or that there was insufficient evidence to conviction for DUI.
The rational determination in Eckhardt was basis musings meaningless not or dicta. It was simply empty essential to its Pursuant finding constitutionality. Eckhardt, constitutionality the is only sustainable if the to reck- respondent’s previous plea less of a calculated to part avoid By overruling a conviction for DUI. Eckhardt’s basis, majority calling of a rational the into question equal protection whether the statute survives Indeed, renders scrutiny. majority’s interpretation the statute potentially unconstitutional.
To the extent the circuit court interpreted statute as requiring respondent’s to reck- prior plea less driving part to be of a plea agreement to reduce or prior DUI, dismiss a I would affirm the court’s believe, I judgment. however, that the circuit ap- court’s plication statute, as to the interpreted, facts of bar, case at was incorrect. The record shows that produced State evidence which showed that respondent *14 was charged in 2002 with DUI and reckless At time, that respondent pled guilty to reckless the DUI charge was dismissed “pursuant agreement.” Although sentencing statement for this earlier plea does not explicitly provide that the to reckless driv- ing was in exchange agreement for the State’s to dismiss the DUI charge, is a reasonable interpretation Thus, court’s 2002 sentencing order. section 5—6— 1(d)(3), above, even when as stated interpreted applies in this Accordingly, instance. I in the join majority’s deci- sion to grant petition State’s for a writ of mandamus.
JUSTICE joins special FREEMAN this concur- rence.