932 N.E.2d 1038, 342 Ill.Dec.577 (2nd Dist. 2010)
(As appearing in the Illinois State Bar Association
Traffic Laws and Courts Newsletter, November 2010, Vol. 20, No. 2)
The Appellate Court held that Public Acts 94-114 and 94-116 created a statutory ambiguity that must be resolved in favor of the more lenient provision. The Court held that subsection (c-1)(4) controlled over subsection (c-16) of the DUI statute. The Appellate Court affirmed defendant’s conviction of DUI, but reduced the offense to a Class 1 felony, vacated defendant’s sentence, and remanded for resentencing.
Defendant was indicted for driving under the influence of alcohol (DUI) (625 ILCS 5/11- 501(a)(2). Because the defendant had at least five prior convictions for DUI, the offense was charged as a Class X felony under section 11-501(c-16) of the Illinois Vehicle Code (625 ILCS 5/11-501(c-16) (West 2006)). After a jury trial, defendant was convicted and sentenced to 20 years of imprisonment. The trial court denied defendant’s motion to reconsider sentence. Defendant appealed.
On appeal, defendant argued that his conviction must be reduced to a Class 4 felony and the cause remanded for resentencing. According to defendant, Public Act 94-114, which raised a sixth or subsequent DUI from a Class 2 felony to a Class X felony (Pub. Act 94-114, §5, eff. January 1, 2006), was implicitly repealed by Public Acts 94-116 (Pub. Act 94-116, §5, eff. January 1, 2006) and 94-963 (Pub. Act 94-963, eff. June 28, 2006) and that, under Public Act 94-963, his offense is a Class 4 felony.
The Appellate Court analyzed the laws involved in this case, all of which directly or indirectly, affected section 11-501 of the Illinois Vehicle Code (625 ILCS 5/11-501 (West 2006)). Writing for the Court, Justice Hutchinson noted that Public Acts 94-114 and 94-116 were both enacted on July 5, 2005, and took effect January 1, 2006. Previously, a third or subsequent DUI was a Class 4 felony. 625 ILCS 5/11-501(d)(1)(A), (d)(2) (West 2004). Public Act 94-114 added subsection (c-16), reading: “Any person convicted of a sixth or subsequent violation of subsection (a) [(625 ILCS 5/11-501(a) (West 2006))] is guilty of a Class X felony.” Public Act 94-116 amended subsection (c-1)(2) by making a third DUI a Class 2 felony; amended subsection (c-1)(3) by making a fourth DUI a Class 2 felony with no eligibility for probation or conditional discharge; and, added subsection (c-1)(4), reading: “A person who violates subsection (a) a fifth or subsequent time is guilty of a Class 1 felony and is not eligible for a sentence of probation or conditional discharge.” Public Act 94-116 omitted subsection (c-16) entirely.
The Appellate Court noted that Public Act 94-963, enacted June 28, 2006, and effective that date, did not amend any of the foregoing provisions or affect the penalties for a fifth or subsequent DUI. Public Act 94-963 amended subsections (j) and (k) of the DUI statute by creating new uses for DUI fines and fees. 625 ILCS 5/11-501(j), (k) (West 2008).
The Appellate Court also reviewed the Statute on Statutes (5 ILCS 70/6 (West 2006)) which states, in pertinent part:
Two or more Acts which relate to (the) same subject matter and which are enacted by the same General Assembly shall be construed together in such manner as to give full effect to each Act except in case of an irreconcilable conflict. In case of an irreconcilable conflict the Act last acted upon by the General Assembly is controlling to the extent of such conflict.
An irreconcilable conflict between 2 or more Acts which amend the same section of an Act exists only if the amendatory Acts make inconsistent changes in the section as it theretofore existed. 5 ILCS 70/6 (West 2006).
Defendant argued that Public Acts 94-114 and 94-116 are irreconcilably inconsistent. The former, by adding subsection (c-16) to the DUI statute, elevated defendant’s offense to a Class X felony. The latter did no such thing (not including subsection (c-16) at all) but instead made the offense a Class 1 felony. The Court noted that from this inconsistency, defendant did not conclude that Public Act 94-116 controlled and made his offense a Class 1 felony. Instead, the defendant argued that Public Act 94-963 controlled because it was the last act that pertained to the subject matter, and it included neither of the amendments made by the other two acts.
After reviewing its analysis in People v. Prouty, 385 Ill.App.3d 149, 324 Ill.Dec. 48 (2nd Dist. 2008) and People v. Maldonado, 386 Ill.App.3d 964, 325 Ill.Dec. 315 (2nd Dist. 2008), as well as the decisions of other Appellate Courts in People v. Gonzalez, 388 Ill.App.3d 1003, 329 Ill.Dec. 189 (3rd Dist. 2009) and People v. Harper, 392 Ill.App.3d 809, 331 Ill.Dec. 282 (1st Dist. 2009), the Appellate Court rejected any contention that Public Act 94-963 controlled. The Appellate Court noted that as did Public Act 94-329, Public Acts 94-114 and 94-116 affected a portion of the DUI statute wholly separate from and unrelated to that affected by Public Act 94-963. The earlier acts amended subsection (c) of the DUI statute to increase the sentencing range for certain types of DUI; the later one amended subsections (j) and (k) to broaden the permitted uses of DUI-related fines and fees. The Appellate Court concluded that Public Act 94-963 did not make inconsistent changes in the DUI statute as it had existed (5 ILCS 70/6 (West 2006), and it did not repeal either earlier act.
The Court then addressed the more difficult issue: whether Public Act 94-116, which was enacted on the same day as Public Act 94-114 and had the same effective date, implicitly repealed Public Act 94-114.
The Court agreed with defendant that the two acts are inconsistent. The Court stated that both acts amended the DUI statute as it existed before either was passed, and did so in contradictory ways. Public Act 94-114 specifically made a sixth or subsequent DUI a Class X felony. The Appellate Court noted that Public Act 94-116 specifically made a fifth or subsequent DUI – and thus a sixth or subsequent DUI – a Class 1 felony. Thus, unlike in Prouty or Maldonado, the second act did not merely omit the amendments that the first act made, but affirmatively included amendments that could not be reconciled with the first act. The Court reasoned that the inconsistency was one of commission, not mere omission. The Court concluded that the acts irreconcilably conflicted, and that the Statute on Statutes required the Court to prefer the later act over the earlier one.
The Court also addressed the rule of lenity, which requires that any ambiguity in a criminal statute must be resolved in the way that favors the accused. People v. Jones, 223 Ill.2d 569, 308 Ill.Dec. 402 (2006). The Court maintained that applying the rule was especially appropriate with an enhancement provision. People v. Davis, 199 Ill.2d 130, 262 Ill.Dec. 721 (2002). The Court noted that the DUI statute as written was ambiguous because it is internally contradictory: it states both that a sixth or subsequent DUI shall be a Class 1 felony (subsection (c-1)(4)) and that a sixth or subsequent DUI shall be a Class X felony (subsection (c-16)). Both subsections were enhancement provisions. Thus, the Court reasoned, it must prefer subsection (c-1)(4) over subsection (c-16).
The Court stated that its holding was supported by People v. Hillenbrand, 121 Ill.2d 537, 118 Ill.Dec. 423 (1988). In Hillenbrand, the defendant was sentenced to consecutive prison terms of 50 to 150 years for one murder and 80 to 240 years for a second murder. He committed the offenses in 1970 and pleaded guilty that year. The defendant escaped and was a fugitive for 13 years, so he was not sentenced until 1984. Under the law as it existed either at the time of his offenses or at the time of sentencing, consecutive sentences were mandatory. However, between January 1, 1973, and July 1, 1974, section 5-8-4(c) of the Unified Code of Corrections was phrased so as to bar the defendant’s sentences from running consecutively, because their aggregate minimum would have exceeded 28 years. The defendant contended that he was entitled to be sentenced under the more lenient intervening provision, so that his sentences would have to be concurrent rather than consecutive.
The Illinois Supreme Court agreed that the crucial point was that which sentencing scheme applied was governed by sections 8-2-4(a) and 8-2-4(b) of the Code, but, by their plain language, these provisions both applied to the defendant’s unique situation. Under subsection (a), he could elect to be sentenced under the statute in effect between January 1, 1973, and July 1974, but under subsection (b) he would have to be sentenced under the harsher law in effect either in 1970 or after the 1977 amendment took effect. The court ruled that the defendant was entitled to the benefit of subsection (a). The court reasoned that it had “repeatedly held that an ambiguity in a penal statute as to which of two possible penalties is to be imposed is to be resolved in favor of lenity.”
In accordance with Hillenbrand, the Appellate Court applied the rule of lenity. The Appellate Court concluded that the DUI statute was ambiguous because it prescribed mutually exclusive sentencing schemes for a defendant, who has been convicted of committing a sixth or subsequent DUI. Under the rule of lenity, the Appellate Court concluded that defendant must be sentenced for a Class 1 felony offense. The Court affirmed defendant’s conviction under subsection (c-1)(4) of the DUI statute, not subsection (c-16). The Court vacated defendant’s sentence, and remanded the cause for resentencing.
The Appellate Court affirmed in part and vacated in part the decision of the Circuit Court of DuPage County, and remanded the cause for resentencing.
David B. Franks
Lake in the Hills, IL