People v. Slater, 3-97-0351

3-97-0351 | Ill. App. Ct. | Apr 30, 1999

30 April 1999

No. 3--97--0351

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1999

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) for the 14th Judicial Circuit

) Rock Island County, Illinois

Plaintiff-Appellee, )

)

v. ) No. 96--CF--935

)

ANDRA D. SLATER, ) Honorable

) James T. Teros

Defendant-Appellant. ) Judge, Presiding

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JUSTICE HOMER delivered the opinion of the court

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The defendant, Andra D. Slater, was convicted of two counts of attempted first degree murder (720 ILCS 5/8--4(a), 9--1 (West 1996)) and two counts of aggravated battery with a firearm (720 ILCS 5/12--4.2 (West 1996)).  The offenses were alleged to have occurred on October 30, 1996.  He was sen­tenced to 18 years in prison on each of the four counts.  The attempted murder sentenc­es were to be served consec­utively to one another, as were the aggravated battery with a firearm sentences.  The two pairs of consec­utive sentences were to be served concur­rently.  On appeal, the defen­dant contends that his aggravated battery with a firearm convic­tions should be vacated on one-act-one-crime principles and that application of the truth-in-sentencing law in this case is uncon­sti­tu­tional.  Follow­ing our careful review, we agree with the defen­dant.

[The following material is nonpublishable under Supreme Court Rule 23].

According to the testi­mo­ny adduced at trial, the defendant ap­proached a vehicle occupied by the two victims.  As he neared, the defen­dant pointed a gun into the vehicle and fired at least four shots.  The defendant then fled the scene.

Each of the victims was wounded by two bullets.  Based on these injuries, the State charged the defendant with one count of attempted first degree murder and one count of aggra­vated battery with a firearm as to each victim.  A jury later returned ver­dicts of guilty on all four of these charges.  The defendant was sen­tenced as noted and informed that the truth-in-sentenc­ing law re­quired him to serve 85% of his sentence.

The defendant argues first on appeal that his convictions for aggravated battery with a firearm must be vacated based on one-act-one-crime principles.  It is well settled that a crimi­nal defendant may not be convicted of more than one offense carved from the same physical act.   People v. King , 66 Ill. 2d 551" date_filed="1977-05-20" court="Ill." case_name="People v. King">66 Ill. 2d 551, 363 N.E.2d 838 (1977).  Objections to surplus convictions, though technically waived, may be re­viewed as plain error.   People v. Lee , 247 Ill. App. 3d 505" date_filed="1993-07-20" court="Ill. App. Ct." case_name="People v. Lee">247 Ill. App. 3d 505, 617 N.E.2d 431 (1993).

In the instant case, the uncontradicted evidence shows that the defen­dant fired all of the shots in rapid succession.  The firing of the gun constituted a single act as to each victim.  That act may be the basis for only one conviction per victim, and his convic­tions for aggra­vated battery with a firearm must be vacat­ed.  

However, we find that the record does not support the defendant's addi­tional conten­tion that the surplus convic­tions influ­enced the trial court's sentencing decision with respect to the at­tempt­ed murder convic­tions.  Therefore, we hold that   remand for resentencing on those convictions is unneces­sary.

[The preceding material is nonpublishable under Supreme Court Rule 23].

Next, the defendant challenges the constitutionality of the truth-in-sentencing law.  The Illinois Supreme Court recently held that Public Act 89--404 (Pub. Act 89--404, eff. August 20, 1995 (amending 730 ILCS 5/3--6--3 (West 1994)), which contained the truth-in-sentencing law, was adopted in violation of the single-subject rule con­tained in the Illi­nois consti­tu­tion.   People v. Reedy , 186 Ill. 2d 1" date_filed="1999-03-29" court="Ill." case_name="People v. Reedy">186 Ill. 2d 1, ___ N.E.2d ___ (1999), modified , No. 85191 (March 29­, 1999).  As a consequence, the court held that Public Act 89--404 was uncon­stitutional in its entirety.  

The State argues that Public Act 89--462 (Pub. Act 89--462, eff. May 29, 1996, (amending 730 ILCS 5/3--6--3 (West 1994)) cured the defects which rendered Public Act 89--404 unconstitu­tional.  Public Act 89--462 added the crime of predatory criminal sexual assault of a child to the list of offenses covered by the truth-in-sentencing law.  In doing so, Public Act 89--462 con­tained all of the truth-in-sentencing provisions of Public Act 89--404 without the discordant provisions which led to the demise of Public Act 89--404.

In support of its argument, the State cites People v. Nicholson , 299 Ill. App. 3d 256, 701 N.E.2d 517 (1998).  In Nicholson , the Appellate Court, Fourth District, acknowledged that ordinarily the mere inclusion of disputed language within an amendatory act does not constitute a re-enactment of the disputed language and thus a proper cure of alleged defects.  To be considered curative legislation in most instances, the law must show, on its face, an intent by the General Assembly to correct the defects in a previous enactment.  The court held, however, that the enactment of the truth-in-sentencing law presented an "unusual situation" in which the passage of Public Act 89--462 could be considered a re-enactment of the truth-in-sentencing law.

A reading of Reedy reveals that the Illinois Supreme Court did not agree with the Nicholson court.  In Reedy , the court said: "As the State correctly asserts, the Illinois legislature has the power to enact curative legislation. *** We note, howev­er, that such legislation must exhibit on its face evidence that it is intended to cure or validate defective legislation."   Reedy , slip op. at 10.  Later in its opinion, the court held that the defects in the truth-in-sentencing law were not cured until the passage of Public Act 90--592 (Pub. Act 90--592, eff. June 19, 1998, (amending 730 ILCS 5/3--6--3(a)(2) and adding 730 ILCS 5/3--6--3(e)).   Reedy , slip op. at 12-13.  

In People v. Stewart , 4--97--0852 (March 26, 1999), the Appellate Court, Fourth District, acknowl­edged that Reedy over­ruled Nicholson sub silentio .  Five days after the court issued its decision in Stewart , the Illinois Supreme Court denied a petition for leave to appeal in Nicholson but ordered the appel­late court to vacate its decision and reconsider the case in light of Reedy .   Nicholson , No. 86456 (March 31, 1999).

Here, the defendant's crimes occurred prior to June 19, 1998, the effective date of the curative legislation contained in Public Act 90--592.  In accor­dance with Reedy and Stewart there­fore, we hold that the defen­dant's sen­tence is not subject to the truth-in-sentenc­ing provi­sions of Public Acts 89--404 and 89--462.  Accordingly, we hereby strike from the trial court's sen­tencing order all refer­enc­es to those provi­sions.

For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed in part as modified and vacated in part.

Affirmed in part as modified and vacated in part.

HOLDRIDGE, P.J., and LYTTON, J., concur.