People v. Hunter , 104 N.E.3d 358 ( 2017 )

2017 IL 121306
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket Nos. 121306, 121345 cons.)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
KEVIN HUNTER, Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS,
Appellee, v. DRASHUN WILSON, Appellant.
Opinion filed November 30, 2017.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and
Burke concurred in the judgment and opinion.
OPINION
¶1 In these consolidated appeals we consider the temporal reach of two legislative
enactments: (1) an amendment to section 5-130(1)(a) of the Juvenile Court Act of
1987 (Act) (705 ILCS 405/5-130 (West 2016)), which, inter alia, eliminated armed
robbery while armed with a firearm and aggravated vehicular hijacking while
armed with a firearm from the list of automatic transfer offenses, and (2) the new
juvenile sentencing provisions codified in section 5-4.5-105 of the Unified Code of
Corrections (Code) (730 ILCS 5/5-4.5-105 (West 2016)), which, inter alia, give the
trial court discretion not to impose otherwise mandatory firearm sentencing
enhancements. The appellate court rejected defendants’ arguments for retroactive
application of these statutes to their cases that were pending on direct review when
the statutes became effective and affirmed defendants’ convictions and sentences.
People v. Hunter, 2016 IL App (1st) 141904, ¶¶ 62, 73; People v. Wilson, 2016 IL
App (1st) 141500, ¶ 16. We affirm the judgments of the appellate court, albeit for
different reasons.
¶2 BACKGROUND
¶3 No. 121306—People v. Hunter
¶4 In June 2011, the State charged defendant Kevin Hunter with aggravated
vehicular hijacking (720 ILCS 5/18-4(a)(4) (West 2010)), aggravated kidnapping
(720 ILCS 5/10-2(a)(6) (West 2010)), and armed robbery (720 ILCS 5/18-2(a)(2)
(West 2010)), all while armed with a firearm. The charges arose out of an incident
the previous month in which Hunter and two unidentified men robbed Steven
Maxwell of personal property including his vehicle and kidnapped him, all at
gunpoint. At the time of the offenses, Hunter was 16 years old.
¶5 The version of section 5-130(1)(a) of the Act then in effect provided as follows:
Ҥ 5-130. Excluded jurisdiction.
(1)(a) The definition of delinquent minor under Section 5-120 of this
Article shall not apply to any minor who at the time of an offense was at least 15
years of age and who is charged with: (i) first degree murder, (ii) aggravated
criminal sexual assault, (iii) aggravated battery with a firearm where the minor
personally discharged a firearm ***, (iv) armed robbery when the armed
robbery was committed with a firearm, or (v) aggravated vehicular hijacking
when the hijacking was committed with a firearm.
These charges and all other charges arising out of the same incident shall be
prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130 (West
2010).
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Pursuant to this statute, Hunter was tried in adult court.
¶6 Following a bench trial in the circuit court of Cook County, Hunter was
convicted on all three counts. The trial court sentenced Hunter to 21 years on each
count—the 6-year minimum for a Class X felony, plus the mandatory 15-year
firearm enhancement—to be served concurrently. See 720 ILCS 5/18-4(b) (West
2010); 720 ILCS 5/10-2(b) (West 2010); 720 ILCS 5/18-2(b) (West 2010); 730
ILCS 5/5-4.5-25(a) (West 2010). Hunter appealed.
¶7 While Hunter’s case was pending in the appellate court, Public Acts 99-69 and
99-258 became effective. 1 Both Public Acts adopted new, identical sentencing
provisions applicable to defendants under the age of 18 at the time of the
commission of the offense. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730
ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (adding 730 ILCS
5/5-4.5-105). Subsection (b) of the new sentencing provisions directs that the court
“may, in its discretion, decline to impose any otherwise applicable sentencing
enhancement based upon firearm possession, possession with personal discharge,
or possession with personal discharge that proximately causes great bodily harm,
permanent disability, permanent disfigurement, or death to another person.” 730
ILCS 5/5-4.5-105(b) (West 2016).
¶8 Public Act 99-258 also amended section 5-130(1)(a) of the Act, raising the age
for automatic transfer to adult court from 15 years to 16 years and eliminating
armed robbery while armed with a firearm and aggravated vehicular hijacking
while armed with a firearm from the list of automatic transfer offenses. Pub. Act
99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)).
¶9 In supplemental briefing in the appellate court, Hunter argued that the
amendment to the Code and the new sentencing provisions in the Act applied
retroactively and that his case should be remanded for a discretionary transfer
hearing, as well as a new sentencing hearing. The appellate court held that neither
1
Neither public act contains an effective date, but pursuant to the Effective Date of Laws Act (5
ILCS 75/0.01 et seq. (West 2014)), because the underlying bills were both “passed” prior to June 1,
2015 (see 5 ILCS 75/3 (West 2014)), the effective date for both public acts was January 1, 2016 (see
5 ILCS 75/1(a) (West 2014)). See also Ill. Const. 1970, art. IV, § 10 (“The General Assembly shall
provide by law for a uniform effective date for laws passed prior to June 1 of a calendar year.”).
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provision applied retroactively and rejected Hunter’s other claims of error, thus
affirming his convictions and sentence. Hunter, 2016 IL App (1st) 141904, ¶¶ 20,
22, 62, 73, 80. We allowed Hunter’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Mar. 15, 2016).
¶ 10 No. 121345—People v. Wilson
¶ 11 In October 2012, defendant Drashun Wilson was indicted for attempted first
degree murder (720 ILCS 5/8-4(a) (West 2012)) and aggravated battery with a
firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)) in connection with the September
23, 2012, shooting of Floyd Fulton. At the time of the offenses and indictment,
Wilson was 17 years old and, under the Act, was tried in adult court. See 705 ILCS
405/5-120 (West 2012). Following a jury trial in the circuit court of Cook County,
Wilson was found guilty of both offenses. The jury also found that Wilson
personally discharged a firearm that proximately caused great bodily harm to
another person. After merging the aggravated battery conviction into the attempted
murder conviction, the trial court sentenced Wilson to 31 years’
imprisonment—the 6-year minimum for a Class X felony, plus the minimum
mandatory 25-year firearm enhancement applicable where the defendant
personally discharged a firearm that proximately caused great bodily harm. See 720
ILCS 5/8-4(c)(1)(D) (West 2012); 730 ILCS 5/5-4.5-25(a) (West 2012). Wilson
appealed.
¶ 12 While Wilson’s case was pending in the appellate court, Public Acts 99-69 and
99-258 became effective. In supplemental briefing, Wilson argued that he was
entitled to be resentenced under section 5-4.5-105(b) of the Code, under which the
trial court could decline to impose the firearm enhancement. The appellate court
held that section 5-4.5-105(b) applied prospectively only. Wilson, 2016 IL App
(1st) 141500, ¶ 16. The appellate court rejected Wilson’s other claims of error and
affirmed his conviction and sentence. Id. ¶¶ 1, 28, 35, 43, 46-47.
¶ 13 We allowed Wilson’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Mar.
15, 2016)) and consolidated Wilson’s and Hunter’s appeals for review.
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¶ 14 ANALYSIS
¶ 15 Whether the statutory amendments at issue here apply retroactively to
defendants’ cases presents an issue of statutory construction. As such, our review
proceeds de novo. People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193,
¶ 27; People v. Amigon, 239 Ill. 2d 71, 84 (2010).
¶ 16 I
¶ 17 We consider first the amendment to section 5-130(1)(a) of the Act, adopted in
Public Act 99-258. As noted above, the amendment changed the requirements for
automatic transfer of a juvenile to adult court, by raising the minimum age from 15
years to 16 years and by eliminating armed robbery while armed with a firearm and
aggravated vehicular hijacking while armed with a firearm from the list of
automatic transfer offenses. Hunter was charged with both of these offenses.
Relying on People ex rel. Alvarez v. Howard, 2016 IL 120729, Hunter argues that
the amendment to section 5-130(1)(a) applies retroactively to his case, and because
the offenses with which he was charged are no longer qualifying offenses for
automatic transfer to adult court, he requests remand to the juvenile court for a
discretionary transfer hearing but for purposes of sentencing only. Hunter does not
challenge his conviction.
¶ 18 Howard was decided after we granted Hunter’s petition for leave to appeal.
There, we addressed the retroactivity of the amendment to section 5-130(1)(a)
adopted in Public Act 99-258. Although Howard involved the change in the
minimum age requirement for transfer to adult court, rather than the change in the
list of automatic transfer offenses that is at issue here, both changes appear in the
same section of the Act. Thus, Howard informs our analysis in this case.
¶ 19 In Howard, the defendant, who was 15 years old, was indicted on multiple
offenses, including first degree murder. The charges against defendant were
brought in adult court, pursuant to section 5-130(1)(a) of the Act (705 ILCS
405/5-130(1)(a) (West 2014)). Howard, 2016 IL 120729, ¶ 4. While the
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defendant’s case was pending in the trial court, Public Act 99-258 became
effective. The defendant argued that his case must proceed in juvenile court
because he no longer met the minimum age requirement for transfer to adult court.
The trial court agreed and transferred the cause to juvenile court. The State sought a
writ of mandamus directing the trial court to rescind the transfer order. We denied
the writ. Howard, 2016 IL 120729, ¶¶ 35-36.
¶ 20 In Howard, we reviewed the proper analysis courts must employ when
determining the temporal reach of a statute. We noted that this court adopted the
United States Supreme Court’s retroactivity analysis set forth in Landgraf v. USI
Film Products, 511 U.S. 244 (1994). Howard, 2016 IL 120729, ¶ 19 (citing
Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 36-39 (2001)).
Under Landgraf, we first ask whether the legislature has clearly indicated the
statute’s temporal reach. If so, and assuming no constitutional prohibition, the
legislature’s intent will be given effect. Howard, 2016 IL 120729, ¶ 19. If the
legislature’s intent is not clear, then, under Landgraf, the court must determine
whether the statute has a retroactive impact, i.e., whether the statute “would impair
rights a party possessed when he acted, increase a party’s liability for past conduct,
or impose new duties with respect to transactions already completed.” (Internal
quotation marks omitted.) Id. (quoting Commonwealth Edison, 196 Ill. 2d at 38,
quoting Landgraf, 511 U.S. at 280). “If there is no retroactive impact, the statutory
amendment may be applied retroactively; if there is a retroactive impact, the court
presumes that the legislature intended the amendment to be prospective only.” Id.
¶ 21 Howard made plain, however, that based on section 4 of the Statute on Statutes
(5 ILCS 70/4 (West 2014)), Illinois courts need never go beyond the first step of the
Landgraf analysis. Howard, 2016 IL 120729, ¶ 20. Section 4 of the Statute on
Statutes, which has never been amended since its adoption in 1874 (see Ill. Rev.
Stat. 1874, ch. 131, § 4 (Hurd 1874)) states:
“No new law shall be construed to repeal a former law, whether such former
law is expressly repealed or not, as to any offense committed against the former
law, or as to any act done, any penalty, forfeiture or punishment incurred, or
any right accrued, or claim arising under the former law, or in any way
whatever to affect any such offense or act so committed or done, or any penalty,
forfeiture or punishment so incurred, or any right accrued, or claim arising
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before the new law takes effect, save only that the proceedings thereafter shall
conform, so far as practicable, to the laws in force at the time of such
proceeding. If any penalty, forfeiture or punishment be mitigated by any
provisions of a new law, such provision may, by the consent of the party
affected, be applied to any judgment pronounced after the new law takes effect.
This section shall extend to all repeals, either by express words or by
implication, whether the repeal is in the act making any new provision upon the
same subject or in any other act.” 5 ILCS 70/4 (West 2016).
¶ 22 As Howard explained, section 4 “is a general savings clause, which this court
has interpreted as meaning that procedural changes to statutes will be applied
retroactively, while substantive changes are prospective only.” Howard, 2016 IL
120729, ¶ 20 (citing People v. Glisson, 202 Ill. 2d 499, 506-07 (2002)). Thus, if the
temporal reach of the statute is not clearly indicated in its text, then the statute’s
temporal reach is provided by default in section 4 of the Statute on Statutes. Id.
¶ 23 Applying this analysis to Public Act 99-258, Howard noted that the portion of
the public act amending section 5-130(1)(a) did not indicate its temporal reach, thus
requiring resort to the default rule in section 4 of the Statute on Statutes. Id. ¶¶ 21,
28. We agreed with the parties that the amendment to section 5-130(1)(a),
impacting whether a defendant is tried in juvenile or criminal court, is purely a
matter of procedure and concluded that, in the absence of a constitutional
impediment to retroactive application, the amendment applies to “pending cases,”
including the defendant’s case. Id.
¶ 24 Howard rejected the State’s argument that applying the amended statute to the
defendant’s case, which had been pending in adult court for three years, would run
afoul of section 4’s requirement that procedural changes only apply “so far as
practicable” (5 ILCS 70/4 (West 2014)). Howard, 2016 IL 120729, ¶ 32. We
observed that transferring the defendant’s case to juvenile court for a transfer
hearing “is something that is feasible.” Id.
¶ 25 Hunter argues that, like Howard, his case was also “pending” on the effective
date of the amendment, albeit on direct review in the appellate court. Hunter posits
that because our retroactivity jurisprudence does not distinguish between cases
pending in the trial court and cases pending on direct review when a statutory
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amendment becomes effective, Howard requires remand of his case to the juvenile
court for a discretionary transfer hearing.
¶ 26 The State counters that this court’s statement in Howard that the amendment
applies retroactively to “pending cases” does not mean that it applies broadly to all
nonfinal cases, i.e., cases that are pending on direct review. The State argues that
the amendment only applies retroactively to cases pending in criminal court that are
capable of conforming to the new statute. The State maintains that applying the
amendment to cases pending on direct review would result in an absurdity,
requiring a remand in every such case where the legislature made an intervening
change to a trial court procedure. The State further argues that even if the
amendment applies retroactively to cases that were pending on direct review at the
time the amendment became effective, remand to the juvenile court for a
discretionary transfer hearing in this case is not practicable because Hunter, who is
now 22 years old, has aged out of the juvenile court system.
¶ 27 We agree with Hunter that our retroactivity jurisprudence has not typically
distinguished between cases that are pending in the trial court and cases pending in
the appellate court on direct review at the time a statutory amendment becomes
effective. The same retroactivity analysis that we employed in Howard, where the
defendant’s case was pending in the trial court when the amendment became
effective, has also been employed by this court where the defendant’s case was
pending in the appellate court at the time the amendment became effective. See
Glisson, 202 Ill. 2d at 508-09 (holding that the general savings clause of section 4
of the Statute on Statutes prohibited retroactive application of a substantive
statutory amendment that went into effect while the defendant’s case was pending
on appeal); accord People v. Atkins, 217 Ill. 2d 66, 71-73 (2005) (holding that under
section 4 of the Statute on Statutes, a substantive amendment that became effective
after the defendant was convicted and sentenced would not apply retroactively).
¶ 28 Our agreement with Hunter on this point, however, does not lead us to conclude
that, pursuant to section 4 of the Statute on Statutes and our decision in Howard,
remand for further proceedings is mandated in this case. The process of statutory
construction requires more than mechanical application of a rule of law or a
decision of this court. We have an obligation to construe statutes in a manner that
will avoid absurd, unreasonable, or unjust results that the legislature could not have
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intended. People ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 19; Illinois State
Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 39. As
we recently observed, “the process of statutory construction should not be divorced
from consideration of real-world results.” People v. Fort, 2017 IL 118966, ¶ 35.
Here, Hunter’s construction of the amended statute would lead to real-world results
that the legislature could not have intended.
¶ 29 We return to the Howard case, on which Hunter relies. Although we stated in
Howard that the amendment to section 5-130(1)(a) of the Act applies to “pending
cases” (Howard, 2016 IL 120729, ¶ 28), we did not elaborate as to what that term
means in the context of applying the default rule of section 4 of the Statute on
Statutes. Certainly, we were not asked in Howard to consider the retroactivity of a
procedural statute where, as here, the case was pending in the appellate court, rather
than the trial court, when the statute became effective.
¶ 30 We also observe that our application of section 4 in the Howard case began
with this statement of the law: “Under section 4, substantive amendments may not
be applied retroactively, but ‘procedural law changes will apply to ongoing
proceedings.’ ” (Emphasis added.) Id. (quoting People v. Ziobro, 242 Ill. 2d 34, 46
(2011) (citing section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2006)))). In
Howard, the trial court proceedings had not yet been concluded. In a real-world
sense those proceedings were “ongoing.” Indeed, we framed the question in
Howard as whether, given the statutory amendment, the defendant should
“continue” to be prosecuted in adult court. Id. ¶ 31. Application of the Statute on
Statute’s default rule meant that the amended statute, changing the requirements for
automatic transfer to adult court, would apply retroactively to a pending case, i.e., a
case in which the trial court proceedings had begun under the old statute but had not
yet been concluded.
¶ 31 Howard is consistent with the language of section 4 of the Statute on Statutes,
which requires that “the proceedings thereafter”—after the adoption of the new
procedural statute—“shall conform, so far as practicable, to the laws in force at the
time of such proceeding.” (Emphasis added.) 5 ILCS 70/4 (West 2016). Section 4
contemplates the existence of proceedings after the new or amended statute is
effective to which the new procedure could apply. The phrase “ongoing
proceedings,” used by this court in Ziobro and Howard, conveys this idea. See also
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People v. Zito, 237 Ill. 434, 438 (1908) (under section 4, “what remained to be
done” must conform to the mode of procedure under the new act).
¶ 32 In Hunter’s case, however, the proceedings in the trial court were completed
well before the statute was amended. No “ongoing proceedings” exist to which the
amended statute could apply. Thus, in contrast to Howard, this is not a case where
we must decide whether the defendant should “continue” to be prosecuted in adult
court. This is also not a case where remand for further proceedings is necessitated
by reversible error at trial. See Ziobro, 242 Ill. 2d at 45-46 (where, after reversing
the trial court’s dismissal of the criminal charges, we instructed that a new
procedural statute would apply retroactively to the proceedings on remand).
Although Hunter challenged the sufficiency of the evidence on direct review, the
appellate court rejected that argument (Hunter, 2016 IL App (1st) 141904,
¶¶ 13-20), and Hunter does not press that claim, or any other claim of reversible
error, in this court. Simply stated, there are no “proceedings thereafter” capable of
“conform[ing]” to the amended statute. 5 ILCS 70/4 (West 2016). Nothing remains
to be done.
¶ 33 Because Hunter’s trial court proceedings have been concluded, and no further
trial court proceedings are necessitated by reversible error, applying the amended
statute retroactively to Hunter’s case would result in this court effectively creating
new proceedings for the sole purpose of applying a procedural statute that postdates
his trial and sentence. We have grave concerns about such a result.
¶ 34 The Landgraf opinion, from which our retroactivity jurisprudence sprang,
speaks to this issue. There, the Supreme Court observed that procedural rules may
often be applied in cases that arose before the rule was enacted. Landgraf, 511 U.S.
at 275. The Court, however, went on to note:
“Of course, the mere fact that a new rule is procedural does not mean that it
applies to every pending case. A new rule concerning the filing of complaints
would not govern an action in which the complaint had already been properly
filed under the old regime, and the promulgation of a new rule of evidence
would not require an appellate remand for a new trial.” Id. n.29.
¶ 35 Justice Scalia, in his concurrence, made a similar observation:
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“A new rule of evidence governing expert testimony, for example, is aimed at
regulating the conduct of trial, and the event relevant to retroactivity of the rule
is introduction of the testimony. Even though it is a procedural rule, it would
unquestionably not be applied to testimony already taken—reversing a case on
appeal, for example, because the new rule had not been applied at a trial which
antedated the statute.” (Emphasis in original.) Id. at 291-92 (Scalia, J.,
concurring, joined by Kennedy and Thomas, JJ.).
See also Michael S. Gilmore, Application of Statutory Changes to Cases in
Progress: The Crossroads of the Legislative and Judicial Power—An Analysis of
Federal and Idaho Law, 34 Idaho L. Rev. 517, 543 (1998) (reviewing Justice
Scalia’s concurrence in Landgraf and noting that if procedural rule changes were
truly applied retroactively “there would be retrial of cases every time new statutes
governing pleadings, appeals, and evidence” were adopted that “would lead to
different results from the old statutes”).
¶ 36 We recognize that our retroactivity jurisprudence, though flowing from
Landgraf, was tempered by our construction of section 4 of the Statute on Statutes,
and we presume that the General Assembly adopted Public Act 99-258 with
knowledge of section 4 and this court’s interpretation thereof. See People v. Villa,
2011 IL 110777, ¶ 36; People v. Jones, 214 Ill. 2d 187, 199 (2005). But in none of
the several cases from this court on which Hunter relies did we remand a case to the
trial court because “the new [procedural] rule had not been applied at a trial which
antedated the statute.” Landgraf, 511 U.S. at 291-92 (Scalia, J., concurring, joined
by Kennedy and Thomas, JJ.). 2 Remand under such circumstances would create
2
See Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 333-34 (2006) (holding that curative
legislation, adopted while the case was on appeal to this court, and which validated the challenged
tax levy, applied retroactively under the clear language of the statute); Atkins, 217 Ill. 2d at 71-73
(holding that a substantive amendment to the burglary statute, which became effective after the
defendant was convicted and sentenced, would not apply retroactively); Glisson, 202 Ill. 2d at 509
(holding that substantive statutory amendment repealing the offense of which the defendant was
convicted, which went into effect while the defendant’s case was pending on appeal, would not
apply retroactively); People v. Digirolamo, 179 Ill. 2d 24, 49-51 (1997) (holding that an amendment
to the venue statute, which became effective after the trial proceedings concluded, would not apply
retroactively because the amendment effected a substantive change in the law); Johnson v. Edgar,
176 Ill. 2d 499, 521-22 (1997) (holding that curative legislation, adopted while the case was pending
on appeal, would apply retroactively pursuant to the statute’s express language); People v. Kellick,
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inconvenience and a waste of judicial resources—a real-world result that the
General Assembly could not have intended. Accordingly, we will not apply the
amended statute retroactively to Hunter’s case.
¶ 37 We reject Hunter’s argument for retroactive application for the further reason
that new procedural rules only apply to ongoing proceedings “so far as
practicable.” 5 ILCS 70/4 (West 2016). We agree with the State that under the facts
of this case, application of the amended statute is not practicable.
¶ 38 Howard equated what is “practicable” to what is “feasible” and concluded in
that case that transfer to the juvenile court for a transfer hearing was feasible, even
if not convenient. Howard, 2016 IL 120729, ¶ 32. At the time of our decision in
Howard, the defendant was 19 years old 3 and still subject to the jurisdiction of the
juvenile court. See People v. Fiveash, 2015 IL 117669, ¶¶ 14-16 (scope of the Act
is limited to persons under the age of 21, and therefore, the juvenile court had no
authority over the 23-year-old defendant). Hunter is now 22 years old. A
discretionary transfer hearing in the juvenile court is no longer feasible because the
juvenile court may not exercise jurisdiction over Hunter. Id.
¶ 39 We disagree with Hunter that, pursuant to Fort, 2017 IL 118966, and People v.
Brown, 225 Ill. 2d 188 (2007), retroactive application of the amendment to section
5-130(1)(a) is yet feasible, despite his age.
¶ 40 In Fort, the juvenile defendant was tried in adult court for first degree murder,
an automatic transfer offense, but convicted of second degree murder, which is not
an automatic transfer offense. We held that plain error occurred when the trial court
sentenced the defendant as an adult under the Unified Code of Corrections without
the State first filing a motion requesting adult sentencing, as required by the Act
(705 ILCS 405/5-130(1)(c)(ii) (West 2008)). Fort, 2017 IL 118966, ¶¶ 30-31. We
determined that the appropriate remedy was to vacate the defendant’s sentence and
102 Ill. 2d 162, 181 (1984) (holding that the legislative history of a statute changing the death
penalty eligibility requirements, that became effective five days after the defendant was sentenced,
indicated the legislature’s intent that the statute operate retroactively to a date that was 15 days prior
to the commission of the murder, requiring vacatur of the defendant’s death sentence).
3
The defendant was born on September 4, 1997 (Howard, 2016 IL 120729, ¶ 4), and our
opinion was filed December 1, 2016.
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remand the matter to the trial court where the State would have the opportunity to
file an appropriate motion for adult sentencing. Id. ¶ 41. We noted: “Should the trial
court find after the hearing that defendant is not subject to adult sentencing, the
proper remedy is to discharge the proceedings against defendant since he is now
over 21 years of age and is no longer eligible to be committed as a juvenile under
the Act.” Id.
¶ 41 In contrast to Fort, where the case was remanded to adult court to allow the
State to file a motion in that court requesting adult sentencing, Hunter seeks remand
for a discretionary transfer hearing, which, he acknowledges, proceeds in the
juvenile court. See 705 ILCS 405/5-805(3)(a) (West 2016). But as already noted,
Hunter, who is 22 years old, is no longer subject to the jurisdiction of the juvenile
court.
¶ 42 In Brown, on which Hunter also relies, the juvenile defendant was tried and
convicted in adult court for attempted murder. Several years later, he filed a
successive postconviction petition challenging his conviction because the statute
under which his case had been transferred to adult court was found
unconstitutional. We held that, because the statute was unconstitutional and void
ab initio, the defendant’s transfer to adult court based on that statute was also void
and the defendant was thus entitled to a new transfer hearing. Brown, 225 Ill. 2d at
199. Although the defendant would have been 25 or 26 years old at the time we
remanded the matter to the circuit court, 4 the State apparently made no argument
challenging the remand based on the defendant’s age. Brown’s silence on an issue
that was not raised does not lend support to Hunter’s position here that a remand to
the juvenile court for a discretionary transfer hearing is feasible, notwithstanding
that the juvenile court cannot exercise jurisdiction over a 22-year-old defendant.
¶ 43 In sum, because the amendment to section 5-130(1)(a) of the Act did not
become effective until after Hunter’s trial court proceedings were concluded and
his case was pending in the appellate court; because no reversible error necessitates
remand for further proceedings to which the amended statute could apply; and
because Hunter, in any event, is no longer subject to the jurisdiction of the juvenile
4
The defendant was 16 in 1997 at the time of the offense (Brown, 225 Ill. 2d at 192), and our
opinion in Brown was filed in 2007.
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court, making remand impracticable, we hold that the amendment to section
5-130(1)(a) of the Act does not apply retroactively to Hunter’s case.
¶ 44 II
¶ 45 We next consider the new juvenile sentencing provisions in the Code, adopted
in Public Acts 99-69 and 99-258. Both public acts adopted identical provisions
titled “SENTENCING OF INDIVIDUALS UNDER THE AGE OF 18 AT THE
TIME OF THE COMMISSION OF AN OFFENSE.” Pub. Act 99-69, § 10 (eff.
Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1,
2016) (also adding 730 ILCS 5/5-4.5-105). The new provisions state in relevant
part:
“(a) On or after the effective date of this amendatory Act of the 99th
General Assembly, when a person commits an offense and the person is under
18 years of age at the time of the commission of the offense, the court, at the
sentencing hearing conducted under Section 5-4-1, shall consider the following
additional factors [enumerated 1 through 9] in mitigation in determining the
appropriate sentence:
***
(b) Except as provided in subsection (c), the court may sentence the
defendant to any disposition authorized for the class of the offense of which he
or she was found guilty as described in Article 4.5 of this Code, and may, in its
discretion, decline to impose any otherwise applicable sentencing enhancement
based upon firearm possession, possession with personal discharge, or
possession with personal discharge that proximately causes great bodily harm,
permanent disability, permanent disfigurement, or death to another person.”
730 ILCS 5/5-4.5-105 (West 2016).
¶ 46 Section 5-4.5-105 of the Code became effective while defendants’ cases were
pending in the appellate court on direct review. In each case, the appellate court
rejected the defendant’s argument that subsection (b), which gives the court
discretion not to impose otherwise mandatory firearm enhancements, applies
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retroactively to his case. Hunter, 2016 IL App (1st) 141904, ¶ 43; Wilson, 2016 IL
App (1st) 141500, ¶ 16. In Hunter’s case, the appellate court held that the
legislature clearly indicated in subsection (a) that the new provisions apply to
sentencing hearings “ ‘[o]n or after the effective date’ ” of the statute, January 1,
2016. Hunter, 2016 IL App (1st) 141904, ¶ 43. In Wilson’s case, the appellate court
also relied on the language in subsection (a), holding that a sentencing court’s
consideration of the additional mitigating factors set forth in subsection (a) and the
sentencing court’s discretion not to impose a firearm enhancement as set forth in
subsection (b) may be exercised only when an individual that is under 18 years of
age commits an offense on or after the effective date of the statute—January 1,
2016. Wilson, 2016 IL App (1st) 141500, ¶ 16.
¶ 47 Defendants argue that the appellate court erred in applying the language in
subsection (a), which limits its temporal reach, to subsection (b). According to
defendants, the legislature’s decision to omit such limiting language from
subsection (b) means that the legislature intended subsection (b) to apply
retroactively. The State counters that section 5-4.5-105 establishes a
comprehensive sentencing scheme, and that the legislature’s expression of
temporal reach in subsection (a) applies to the entire scheme.
¶ 48 Under our well-settled rules of statutory construction, “where the legislature
includes particular language in one section of a statute but omits it in another
section of the same statute, courts will presume that the legislature acted
intentionally in the exclusion or inclusion” (People v. Smith, 2016 IL 119659, ¶ 30)
and that the legislature intended different results (In re K.C., 186 Ill. 2d 542, 549-50
(1999)). Here, the fact that the legislature included language in subsection (a)
limiting its temporal reach but omitted such language in subsection (b) is indicative
that the legislature intended different results and that the limiting language in
subsection (a) applies only to that subsection. Thus, only the trial court’s obligation
set forth in subsection (a) to consider additional factors in mitigation at sentencing
is controlled by the limiting language in that same subsection.
¶ 49 Had the legislature intended all of the new sentencing provisions to have the
same temporal reach as the provisions in subsection (a), the legislature could have
included the limiting language in a separate subsection so stating, as it did in
connection with another amendment adopted as part of the same public act. See
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Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-805, adding
705 ILCS 405/5-805(7) ( “[t]he changes made to this Section *** apply to a minor
who has been taken into custody on or after the effective date of this amendatory
Act”)). The legislature, however, did not do so with respect to the new juvenile
sentencing provisions.
¶ 50 The legislature also could have preceded all of the subsections of the new
statute with a statement indicating that all of the new provisions have the same
temporal reach, as it did when it added another new section to the Act. See Pub. Act
99-258, § 5 (eff. Jan. 1, 2016) (adding 705 ILCS 405/5-822 (providing, prior to the
numbered paragraphs, for data collection to commence “[o]n the effective date of
this amendatory Act of the 99th General Assembly”)). The legislature did not do so.
¶ 51 We presume that the legislature acted intentionally when it included the
limiting language in subsection (a) but omitted that same language in subsection
(b), and we therefore agree with defendants that the appellate court erred in
applying the language in subsection (a) to subsection (b). That said, we disagree
with defendants that the omission of that language in subsection (b) means that the
legislature must have intended that subsection (b) apply retroactively to cases that
were pending on direct review when the statute became effective. Just as we will
not read the limiting language of subsection (a) into subsection (b), neither will we
inject into the statute an unexpressed provision requiring retroactive application of
subsection (b). See King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 26
(2005) (courts may not, in the guise of statutory construction, annex new provisions
not expressed by the legislature).
¶ 52 Because the statute is silent as to the temporal reach of subsection (b), we once
again refer to section 4 of the Statute on Statutes. Although the parties dispute
whether subsection (b) is properly labeled “procedural” or “substantive,” we need
not decide that issue. Rather, we agree with the State that, under section 4,
subsection (b) of the new statute cannot apply to Hunter and Wilson, who were
sentenced before the statute took effect.
¶ 53 The second sentence of section 4 of the Statute on Statutes expressly provides:
“If any penalty, forfeiture or punishment be mitigated by any provisions of a
new law, such provision may, by the consent of the party affected, be applied to
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any judgment pronounced after the new law takes effect.” 5 ILCS 70/4 (West
2016).
¶ 54 In People v. Hansen, 28 Ill. 2d 322, 340-41 (1963), we held that the defendant
was not entitled to be resentenced under the new criminal code, which went into
effect just 13 days after he was sentenced, because, under section 4, “a punishment
mitigated by a new law is applicable only to judgments after the new law takes
effect.” Similarly, in People v. Bradford, 106 Ill. 2d 492, 504 (1985), we held that,
under section 4, the defendant was not eligible to be sentenced under a statutory
amendment that became effective while his case was pending in this court because
he had already been sentenced prior to the statute’s effective date. Where, however,
a defendant’s sentence is vacated on appeal and the matter remanded for
resentencing, under section 4 of the Statute on Statutes, the defendant may elect to
be sentenced under the law in effect at the time of the new sentencing hearing.
People v. Reyes, 2016 IL 119271, ¶ 12 (per curiam) (vacating the defendant’s
sentence as unconstitutional and remanding to the trial court where, pursuant to
section 4 of the Statute on Statutes, the defendant was entitled to be resentenced
under the new juvenile sentencing provisions).
¶ 55 Here, no dispute exists that defendants were sentenced well before the new
juvenile sentencing provisions, including subsection (b), became effective on
January 1, 2016. 5 Further, defendants make no claim that error occurred in the trial
court that would require vacatur of their sentences and remand for resentencing,
thus giving them the option to be sentenced under subsection (b).
¶ 56 Defendants’ sole argument against applying the second sentence of section 4 in
the present case is that subsection (b) of the new statute does not mitigate
punishment. We disagree. To “mitigate” means “to make less severe.” Webster’s
Third New International Dictionary 1447 (1993); see Black’s Law Dictionary 1154
(10th ed. 2014). Subsection (b) provides that the trial court “may, in its discretion,
decline to impose any other applicable [firearm] sentencing enhancement.” 730
ILCS 5/5-4.5-105(b) (West 2016). Thus, in the case of Hunter, who was found
guilty of aggravated vehicular hijacking, aggravated kidnapping, and armed
robbery, all while armed with a firearm, application of subsection (b) would mean
5
Hunter was sentenced on May 29, 2014. Wilson was sentenced on May 2, 2014.
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that the low end of the sentencing range would be reduced from 21 years (the 6-year
minimum sentence for a Class X felony, plus the mandatory 15-year firearm
enhancement) to 6 years (the minimum unenhanced sentence for a Class X felony).
In the case of Wilson, who was found guilty of attempted first degree murder where
he personally discharged a firearm that proximately caused great bodily harm,
application of subsection (b) would mean that the low end of the sentencing range
would be reduced from 31 years (the 6-year minimum sentence for a Class X
felony, plus the mandatory 25-year minimum firearm enhancement) to 6 years (the
minimum unenhanced sentence for a Class X felony). We conclude that subsection
(b) of the new juvenile sentencing provisions mitigates punishment because the
potential sentence is “less severe” than under the prior sentencing scheme.
Accordingly, defendants are not eligible to be sentenced under subsection (b). The
appellate court came to the correct conclusions, but for the wrong reasons.
¶ 57 CONCLUSION
¶ 58 For the reasons discussed above, we affirm the judgments of the appellate
court.
¶ 59 Affirmed.
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