*1 stated, Accordingly, the reasons judgment the circuit court is affirmed.
Affirmed.
GARMAN, P.J., STEIGMANN, J., concur. ILLINOIS, THE PEOPLE OF THE Plaintiff-Appellee, STATE OF E. IAN PITTS, Defendant-Appellant.
Fourth No. District 4 — 97—0071 Opinion Rehearing filed April March denied 1998 . part dissenting part.
McCULLOUGH, J., specially concurring in *2 Appellate Lang, of Defender’s Daniel D. Yuhas and Arden J. both State Office, Springfield, appellant. (Norbert Fichter, Goetten, Attorney, J. of Decatur Lawrence R. State’s McClain, Attorneys Biderman, Ap all of State’s J. and Linda Susan Robert Office, counsel), People. pellate for the Prosecutor’s opinion of the court: JUSTICE STEIGMANN delivered defendant, Pitts, E. with charged In Ian two June State (720 4(a) (first murder) ILCS separate attempt degree counts of 5/8 — (West 1(a)(1) (West 1995)), 1994); separate two counts of Supp. (720 (720 (West 1994)), robbery armed armed violence ILCS 5/33A—2 (720 2(a) (West 1994)), hijacking aggravated ILCS vehicular 5/18 — (West (720 1(a) 4(a)(3) 1994)), burglary ILCS and ILCS 5/19— 5/18 — (West 1994)). August pleaded to both at- guilty (first murder) tempt robbery, degree pursuant counts and armed charges. agreement remaining parties the State’s to dismiss the The agreement regarding no trial would had the sentence the court impose. years
In October trial court sentenced defendant (first murder) and degree on conviction six prison attempt each years conviction, with all prison robbery armed sentences to consecutively. be served sentencing hearing,
At the conclusion of the the trial stated court its with the that defendant would have serve agreement prosecutor then-recently prison of his sentences as result enacted 85% (730 6—3(a)(2)(ii) (West “truth-in-sentencing” ILCS statute 5/3 — 1995)), the Unified Code of which modified section 3—6—3 of Supp. 6—3(a)(2) (West 1994)) (Code) to limit ILCS Corrections 5/3 — days prisoner good per conduct to more than 4.5 month for a credit no (first murder). degree serving a sentence (1) 36-year prison his arguing aggregate appeals, Defendant that an of the trial court’s sentence was excessive and constitutes abuse (Pub. (2) discretion; Public Act 89—404 § August 4323-27)), 111.Laws which created the “truth- (a) statute, in-sentencing” is unconstitutional because it violates the (Ill. single subject rule the Illinois Constitution Const. art. (b) IV, 8(d)), it equal protection § violates the clauses of the (U.S. United Const., XIV; States and Illinois Constitutions amend. 2). I, reject Const. art. We defendant’s first argument but agree “truth-in-sentencing” that the statute violates the rule of Accordingly, the Illinois Constitution. we affirm and remand with directions.
I. BACKGROUND pleaded guilty August 1996, When defendant the trial court adopted the factual basis previously presented at Jody codefendant guilty plea hearing. parties Rinderer’s also stipulated that Jones, codefendant, Amanda another testify would the three Gaddis) (defendant, male Rinderer, codefendants agreed Jason ahead time they kill going were Victoria Bridgeman and attack, steal her car. After the defendant admitted that he had Bridgeman. stabbed
At the hearing, trial court received evidence from parties, including personality inventory both regarding defendant presentence report and a prepared by probation department. The court arguments also heard suggestions of counsel.
Information the sentencing hearing before trial court re- following. vealed Bridgeman met a through defendant friend’s neighbor and had known approximately years. him for two Defen- dant subsequently her introduced to Gaddis and Rinderer. On the evening April Bridgeman, defendant, Gaddis, and Rin- together car, derer were in Bridgeman’s parked which was “in the country.” seat, Bridgeman was seated in the driver’s Gaddis was in seat, passenger the front and defendant and Rinderer were Bridgeman back. testified that “had a acting creep Rinderer been like night,” all her telling that she needed to him. respect Bridge- After him, man disagreed with the three codefendants left the vehicle ostensibly to use the bathroom.
Upon returning later, three to five each minutes of them took a car, position new with Bridgeman defendant seated beside and Gaddis Bridgeman arguing, behind her. and Rinderer continued and Bridgeman “get turned to from Gaddis. At that input” point, Gaddis a put strangling cord around her neck and began her. Defendant kneeling seat, Bridgeman, began then turned toward on the front and Bridgeman portion her in the face. punching described that initial the attack as follows: yelling, They were all trying get [Gaddis]. a
“I was to hold trying pull to the cord my my right I hand underneath had and — just kept hitting me and my neck, away [defendant] and it from ” They kept yelling ‘Get her.’ hitting me. awakened, her Bridgeman When Bridgeman lost consciousness. car, hit her in up her assailants stood her beside three her, yelling They began kicking whiskey bottle. then the head with a consciousness; Bridge- when once lost Bridgeman again “Die bitch.” drag to her into ditch. reawakened, trying her were man assailants Once in the a few times.” fight to them off and “was stabbed She tried ditch, yell Bridgeman her to “Die bitch.” they kicked and continued yelled “Die bitch” at least estimated that her three assailants life, for her tell- Bridgeman began pleading during times the attack. kicked point, her “die in At that someone ing peace.” them to leave to they in her car. again, away her drove safety.” She stated Bridgeman up then and tried “to head to stood She gotten had far when she saw car turn around. that she not get them out of her ground fell back to on her stomach and heard shut.) time, of the three (By eyes car. her were swollen One say, pulse. to and felt for She then heard someone up walked her prodded “She isn’t Finish her off.” After defendant and Gaddis dead. throat, get her In an to Rinderer to slash Rinderer did so. her Bridgeman grabbed them “to when I was throat dying,” leave At her point, like was on her own blood. choking acted she car, stereo, to and left. up three assailants returned her turned consciousness, again losing regaining Bridgeman After once find help. walked to (during
As at least a result of attack which she was stabbed times), for one week and accumulated Bridgeman hospitalized was $50,000. scars, “a totalling including medical She has several bills head, very eye, her one her one big indentation” on on left across nose, her nose her bridge right of her one on cheek and across her throat, cheek, very big “a side her and oth- right left slash” torso, her upper including ers “all over” her several scars on breasts. life, her as follows: Bridgeman impact described the of the attack on absolutely everybody. Ap- anybody. “I trust used trust don’t I anymore. my go I car. I am scared parently not am scared anybody sitting car. I the backseat be cannot have only much they pretty I happen could if do. And can fear what *4 somebody my my mother.” sister and in well-lit areas with like father, that defen- Pitts, testified on his behalf Louis defendant’s previously had been growing up dant and psychiatric problems had his disorder.” Defendant hospitalized and medicated for “outburst taking stopped they his medications because caused side effects and expensive, he doing pretty good.” were and “seemed to be presentence report defendant, indicated that who was 16 years offense, old at the time of a was member of a gang, street daily drugs regular basis, uses alcohol and drugs, sells and has an “explosive disorder” that causes him to become violent when angry. September 1993, In adjudicated delinquent trial court him committing for theft. Defendant subsequently supervi- violated court by sion committing aggravated the offenses of battery battery. and probation, He then was sentenced to and after he violated several conditions, probation probation the court ordered his terminated as May In again unsuccessful. defendant adjudicated was delin- quent committing of battery resisting offenses of- peace ficer. While the juvenile detention center after his arrest case, defendant rules, committed violations of one detention which aggressive involved behavior.
II. ANALYSIS A. Defendant’s Claim That His Sentence Was Excessive argues Defendant first that the trial court abused its discretion by an imposing excessive prison aggregate years. sentence an of 36 Specifically, years defendant contends he only that because was old, had prior juvenile justice system, limited contacts with the history problems, had a of mental and emotional the trial court “failed fully appreciate potential.” [defendant’s] the extent rehabilitative emphatically disagree. We
A trial court’s discretion in a defendant is entitled to great weight, deference and and this court will not alter that on appeal sentence an absent abuse discretion the trial court. Williams, People 678 N.E.2d (1997). sentencing hearing
At the his accomplices, defendant and prosecutor argued “[t]his crime of any mercy” was devoid face, neck, the victim suffered at least 23 on her stab wounds torso, Throughout ordeal, and hands. repeat- her she was addressed edly cry with the of “Die they bitch.” her assailants realized When her, they throat, had not lifted up, killed her slit her left then her prosecutor pointed for dead. The also out that was a gang, explosive temper, whiskey member a street has an consumes daily passes out, until support he and sells himself. cannabis sentencing defendant, the trial court first stated its es agreement prosecutor’s arguments sential with the and then noted only thing that the could worse victim’s assailants have done was *5 attempting awfully, awfully close in her, “[t]hey came to murder as follows: The court concluded to achieve that.” young type not tolerate this society!,] cannot and will “In our we people. We don’t need these upon free the streets. [sic] men to be crimes, somebody got has to types of don’t need these We case, [j]udge. It’s it’s the society. particular In this protect young of these And[,] therefore],] give I to each intend [c]curt. protect public.” fairly sentences to men extensive conclusion, trial court’s with the agree without reservation We Johnson, People in we stated holding, we reaffirm what so (1994), fol 1285, as 565, 572, 1290-91 634 N.E.2d 3d lows: right walk forfeit their to
“People who commit crimes like this all society. must do among as a free The courts us members of suffering they crimes—and the can to ensure that these terrible life)— for her they (perhaps victim the rest of caused this innocent By put- upon other innocent victim. again never be visited some lengthy period, the ting vicious criminal behind bars for this this society, obligation protect to and we affirm trial court fulfilled its the trial court’s sentence.” “Truth-In-Sentencing”
B. The Statute “truth-in-sentencing” argues next statute Defendant that and is single subject rule of the Illinois Constitution violates 8(d). IV, he asks Specifically, therefore invalid. Ill. Const. art. § him portion requiring this to of his order court vacate clarify he is to imposed 85% of the sentence serve pursuant sec day-for-day credit which he was entitled receive 3—6—3 enactment of the “truth-in- prior tion Code to the agree. sentencing” statute. We IV, 8(d), Illinois Constitution of
Article section “Bills, ap part, except as follows: bills for provides, pertinent codification, rearrangement and for the revision or propriations 8(d). IV, laws, subject.” be confined to one Ill. Const. art. § shall 514-18, Edgar, In 176 Ill. 2d 680 N.E.2d Johnson v. recently (1997), Supreme 1379-81 Court of Illinois discussed length it held subject so-called rule —at when provision —the enacting Public Act 89—428 legislature that the violated that rule 4453)). (Pub. 13, 1995 Ill. Laws eff. December 89— Johnson, the court wrote as follows: single subject requirement is “The rule a substantive *** subject judicial passage of bills and therefore review. liberally context, construed ‘subject,’ in this is to be term may legislature [Cita- as as the chooses. and the broad Nonetheless, tians.] matters included the enactment must logical have natural and [Citations.] connection. The rule prohibits provisions the inclusion of1 “discordant no fair can having any legitimate intendment be considered as relation to ’ Johnson, 514-15, [Citations.]” each other.” N.E.2d at 1379. mind, With these rules in we examine Public Act effec 89— August
tive which contains in one its sections the amend ment to 3—6—3 of the Code. Pub. Act 4323-27) August 20, (amending Ill. Laws 730 ILCS 5/3— 3(a)(2) (West 1994)). That amendment contains the “truth-in- sentencing” provision complains. of which defendant
Public Act 89—404 contains 10 separate sections that either amend or add to Illinois statutes. Defendant asserts that Public Act 89—404 provisions legitimate contains discordant that have no rela *6 and, accordingly, tion to each other single subject violate the rule of IV, 8(d), 1970, article section of the Illinois Constitution. Ill. Const. 8(d). IV, art. partially assertion, Defendant is in § correct his but that is all required that is for this court to conclude that Public Act 89— 404 is void it because violates the Illinois Constitution. (sections 45)
The through first nine sections of 5 Public Act 89— 404 comply liberally with the subject rule when construed. The (1) 10 deal following: authority sections with or concern the the of (section (Pub. 5) (1995 404, 5, sheriffs Act August 20, eff. § 1997 89— (2) 4306)); authority Ill. Laws municipal of certain officers police (section 10) (Pub. (1995 404, 10, 20, August Act eff. § 1995 Ill. 89— (3) (section 15) 4306)); insanity Laws a modification of the defense (Pub. (1995 404, 15, 20, August Act eff. § 1995 Ill. Laws 4306- 89— (4) 07)); proceeds disbursement of from Can forfeitures under the (section 20) (Pub. 404, 20, 20, nabis Control Act Act eff. August § 89— (1995 (5) 4307-10)); 1995 Ill. proceeds Laws disbursement of from for feitures under the Illinois Controlled Substances Act and modifica (section 25) of sentencing provisions tions certain under that act (Pub. (1995 404, 20, 25, August Act eff. 1995 Ill. Laws 4310- § 89— (6) 20)); a authority beyond of law enforcement officer that of (section 30) (Pub. jurisdiction 404, 30, 20, ficer’s Act eff. August § 89— (1995 (7) 4320-21)); prohibition jury 1995 Ill. Laws trials for (section (Pub. 35) 404, 35, certain forfeiture cases Act eff. § 89— (1995 (8) August 20, 4321-23)); 1995 Ill. Laws the “truth-in- Code, sentencing” of the addition to section 3—6—3 which appeal, of this as well as the creation of a “truth-in- commission, sentencing” requirement explain that trial courts provisions sentencing, new the time of and a “truth-in-sentencing” at
189 (section 40) (Pub. Act insanity procedures defense modification of the (1995 (9) 4323-36)); Ill. 40, eff. Laws August § 89— forfeitures exemptions drug to asset inapplicability homestead (Pub. (section 45) Ill. August Act eff. § 89— (10) Hospital provid to Lien 4336)); and an amendment Act Laws by a hospitals operated ing nonprofit hospitals a mechanism for of ac government upon to file a lien claims and causes unit local by hospitals treated such injured persons tions of who have been (Pub. (section 50) Act payment of their treatment (1) 4336-37)). August 20, 1995 Ill. Laws Section further days hospital up perfect has to 30 calendar to provides that such a (2) lien; its addresses the situation which satisfy judgment to be person hospital treated at the a verdict or obtains annuity of an paid over time means or otherwise. clear, makes first nine sections of Public description
As this 45) aspect some (specifically, through Act 89—404 sections 5 concern designation thus within the justice system of the criminal fall 8(d), “subject” IV, in the section of the Illinois one context article first way, none of the put Constitution of 1970. To the matter another nine Act is “discordant” with the others sections Public 89—404 having as fairly legitimate because all of them can be considered Johnson, each 2d at relation to other. N.E.2d However, liens, dealing hospital with fails that test. does even claim section 50 has State not relationship some the other nine sections of Public procedure. all to criminal law or pertain which some fashion Instead, title Public Act 89— the State contends that because the governmental matters, amending named 404 is “An Act relation relate acts,” only need comprising 10 sections Public Act 89—404 matters, and the State asserts governmental some fashion *7 disagree. do. they We single
In our the an to the judgment, proposes exception State the the subject effectively rule that would swallow rule render Although the supreme nullity. recent decision Johnson court’s it of in an of whether analysis title an act should be considered IV, 8(d), Il- single subject violates the rule of article section of ac- 1970, be if we dispositive; linois Constitution of the title cannot single nothing be left of the cepted argument, the State’s would make subject beyond creativity legislative rule of drafters possible. titles of as broad as acts “subject” of the term supreme spoke
When the court in Johnson rule, meant single subject of that court in the context issue, is contained enactment at which legislative substance of act, case, within body namely, of the sections thereof. this that 5 through means sections 50 of Public Accordingly, Act 89—404. none of those sections can discordant to the others be for that act However, pass demonstrated, constitutional muster. as we have sec tion Thus, 50 is discordant to the other sections. we hold that no mat ter liberally single subject construed, how rule is Act Public 89— Johnson, 516, violates that rule. See 176 Ill. 2d at N.E.2d 1380. matter,
As a last argues the State that if this court were find that Public Act 89—404 was enacted violation of the Illinois Con- stitution, then we should view subsequent reenactment of the provision “truth-in-sentencing” of of section 3—6—3 the Code in Pub- 462, lic May Act effective “validating” as of section 40 89— 404, Public Act which provision. disagree. contained that We 89— The offenses 23, defendant was convicted of April occurred on 1996. Public Act which the State seeks to use “validate” 89— the “truth-in-sentencing” provision, May 29, was enacted 1996. Pub. (1996 655-58). May Ill. § Laws We agree giving with defendant effect to Public Act 89—462 under these post circumstances would violate the ex clauses of the facto Const., I, 10; United States and Illinois Constitutions. U.S. art. §§ I, Viewing Const. art. the “truth-in-sentencing” statute that, as substantive is not very difficult when one realizes very case, what is at stake for defendant is whether he must serve 85%, 50%, only or his 36-year aggregate prison sentence.
Because we hold that Public Act 89—404 the violates IV, 8(d), rule article section of the Illinois Constitution argument we need not address defendant’s other it also violates rights protection defendant’s constitutional to equal of the laws. holding,
In so we acknowledge dissenting opinion our colleague, distinguished McCullough, Justice recent decision of the Third Appellate People District Court Watford, (1997), holding challenge that a defendant’s to the truth-in-sentencing provisions of Public Act 89—404 cannot be brought may by filing on direct but be an appeal only brought action corpus in habeas or respectfully disagree mandamus. We with McCullough following and Justice for the reasons. Watford 6—3(a)(2)(ii) Although of the Code ILCS 5/3—6— 3(a)(2)(ii) (West 1995)) Supp. may self-executing as far as the Department concerned, Corrections Public Act 89—404 does (c 2) require trial (by court the addition subsection to section — 4—l(c—2) (West 1995)) 5—4—1 of the Supp. Code ILCS 5/5 — *8 credit the good-time how much open question in court the discuss Further, it is although true will receive. being sentenced regarding a trial court’s error new that provides that this subsection on appeal” not on the defendant provision “may be relied this (West 4—l(c—2) 1995)), a Supp. that statement addresses ILCS 5/5 — us in this question before different matter than the constitutional Here, correctly not the trial court question is whether case. instead, truth-in-sentencing provision; applied stated —and —the constitutionally require the is whether Public Act 89—404 can issue good-time credit. anything regarding trial court do in Moreover, that the decision agree we with defendant Watford level because encourages piecemeal appellate at proceedings many pursue appeal saving will a while this issue defendants direct writ or habeas subsequent in for a of mandamus present petition a defective, constitutionally If Act 89—404 is as seems corpus. Public us, holding so policy clear to then we see no reason for not this point, argued. issue fully when the has been briefed and
III. CONCLUSION stated, judgment For the reasons we affirm the trial court’s sentencing remand with directions that the trial court amend the or- for eligible day-for-day good-time der to reflect that defendant is provided any as in “truth- prior credit section 3—6—3 of Code in-sentencing” amendments added thereto.
Affirmed and remanded with directions.
KNECHT, J., concurs. McCULLOUGH, in specially concurring
JUSTICE and dis- part part: senting agree imposition
I that the trial court should affirmed (first degree robbery sentences for defendant’s armed and two murder) Defendant’s claim that his sentence was exces convictions. plea. guilty sive is waived for failure to file a motion withdraw the (1997). People Economy, 683 N.E.2d is, day-for- disagree appeal, eligible I that defendant argu- day good-time credit. The finds that the defendant’s majority rule of the ment that Public 89—404 violates case, posture is In the of this Illinois Constitution well-taken. Act 89—404 should not be addressed. constitutionality Public truth-in-sentencing provisions set section 3—6— The forth 3(a)(2)(ii) 6—3(a)(2)(ii) self-executing. 730 of the Code ILCS are 5/3 — (West 1996). majority suggests 5—4—1 of the Code imposes requirement on the trial judge to state at the hearing good-time provision applies what under section 3—6—3. This suggestion bootstrap attempt to validate majority’s determi- nation that Public Act 89—404 is unconstitutional. 4—l(c—2) provides
Section “judge trial state shall *9 the in open approximate record court period the of time the defen- *** dant custody will serve in according regulations to the for early 4—l(c—2) (West release found in Section 3—6—3.” 730 ILCS 5/5 — 1996). 4—l(e—2) But provides: also “This statement is 5— solely public, intended to inform the legal has no effect the release, defendant’s may actual be on by not relied the defendant (West 4—l(c—2) 1996). on appeal.” 730 ILCS purpose The of 5/5 — the legislation to appears required be admonishment the public Supreme not the defendant. 402 require Court Rule does not the trial court good-time to admonish a defendant as to what credit may he provisions receive under the of 6 of article the Code. 730 (West 1996). 4—l(c—2) ILCS 5/3 —6—3 Section makes it clear 5— “ period ‘[t]he actual prison by of time served is determined *** statutes of as applied by Illinois Department Illinois Cor- of ” added.) and the rections Illinois Prisoner Review (Emphasis Board.’ 4—l(c—2) (West 1996). 730 ILCS 5/5 — background, With this suggest I constitutionality of Public Act 89—404 is an not to be appropriate by issue raised defendant in appeal. direct a guilty plea Defendant entered and the State charges. dismissed other This issue was not raised at or in included defendant’s motion to reconsider his The sentence. last 604(d) sentence of Rule quite specific: “Upon appeal is any issue not raised the defendant the motion reconsider the sentence or withdraw the plea guilty and vacate the he judgment shall deemed added.) 604(d). (Emphasis waived.” 145 111.2d R. The supreme court’s language ought to The be followed. issue is waived. 448, People v. Bryant, 128 2d 539 N.E.2d 1224
(1989), supreme court issue may stated constitutional be raised Starnes, any People 911, 913-14, time. In v. 3d App. 273 Ill. (1995), appellate distinguished Bryant, finding N.E.2d court that Bryant “prohibits challenge constitutionality waiver of a to the of the statute under which a defendant is convicted.” The Starnes pursuant Sales, court then found that to the reasoning People (1990), apply waiver N.E.2d 1359 does constitutional attacks on a collateral statute. argues, truth-in-sentencing
As the State are collat- provisions eral to the statutes under which was convicted and III of Code concerns heretofore, chapter out pointed sentenced. As through ILCS 5/3 —1—1 Department Corrections (West 1996). self-executing. is credit Section 3—6—3 3—15—13 issue to the Code not an issue under article 6 of time served 3—6— appeal in this case. Section in direct properly addressed 3(a)(2)(ii) serving a sentence for prisoner that a provides days 4.5 degree “shall receive no more than commit first murder imprison- month his or her sentence of good conduct credit for each 6—3(a)(2)(ii) (West 1995). Supp. Determining ILCS ment.” 730 5/3 — of Cor- responsibility Department credit for time served is rections, not the trial court. above, necessary to address the the reasons stated it is not
For concerning legislation Public argument State’s reenactment (Pub. Acts or Public Act 89—656 89—428 3500-01)). January Laws constitutionality is before Watford, properly the issue of not As in their en- this court. The trial court’s orders should be affirmed tirety. *10 ILLINOIS,
THE Plaintiff-Appellee, PEOPLE OF THE STATE OF v. RENE TOMLINSON, Defendant-Appellant. A.
Fourth District No. 4 — 97—0197
Opinion February filed