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PEOPLE v. QUEVEDO
Affirmed.
Defendant concedes that section 9-1(a)(2) connects the terms "death" and "great bodily harm" in the alternative by using the conjunction "or." By using the word "or," the legislature expressed its intent that "death" and "great bodily harm" may be considered and proved alternatively rather than in addition to one another. If we were to link "death" and "great bodily harm" as a single mental state as defendant advocates, we would disregard the plain and ordinary meaning of the word "or" in section 9-1(a)(2) and effectively would require proof that, in performing the acts that cause the death, the accused knows that such acts create a strong probability of death and great bodily harm. Moreover, requiring the State to prove that "death was at least among the contemplated results," as defendant recommends, would defeat the stated purpose of the section. Stations, 139 Ill. App. 3d at 1036 (purpose of section 9-1(a)(2) is to define less culpable conduct by which defendant causes death but lacks actual intent to kill or do great bodily harm or knowledge that such a result will occur, and knows only of the probability that the acts will cause either death or great bodily harm). We decline to read into section 9-1(a)(2) a condition that the legislature did not express in its plain language. Accordingly, we hold that, by proving beyond a reasonable doubt the allegations of count TV, the State proved beyond a reasonable doubt the requisite mental state of first-degree murder as defined by section 9-1(a)(2).
Our decision is supported by Stations, where the Appellate Court, Third District, considered and rejected defendant's position. In Stations, the defendant was charged with five counts of first-degree murder. Each count alleged a different portion of murder as defined in sections 9-1(a)(1) and 9-1(a)(2) of the Code. As now, the requisite mental state for knowing murder under section 9-1(a)(2) was knowledge "that such acts create a strong probability of death or great bodily harm" (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)(2)), but, rather than charging the mental state in a single count, the State parsed it into two counts, and the jury received corresponding instructions.
Count IV alleged that the defendant knew his acts created a strong probability of death. Count V alleged that he knew his acts created a strong probability of great bodily harm. Stalions, 139 Ill. App. 3d at 1035. The defendant was acquitted on count IV and convicted on count V ( Stalions, 139 Ill. App. 3d at 1035), which was the identical outcome as in this case: an acquittal of knowingly creating a strong probability of death and a conviction of knowingly creating a strong probability of great bodily harm. On appeal, the defendant argued that the verdicts were inconsistent, but the appellate court disagreed. Expressing its preference for a general verdict over separate ones, the appellate court stated, "[w]hile we believe the jury was probably over-instructed, we do not believe they were misinstructed." Stalions, 139 Ill. App. 3d at 1037. The appellate court concluded that there were neither legal nor logical inconsistencies in finding that the defendant acted with the knowledge that his acts created a strong probability of great bodily harm, but not death. Stalions, 139 Ill. App. 3d at 1037.
In People v. Dunmore, 389 Ill. App. 3d 1095 (2009), we cited Stalions with approval. In Dunmore, the jury convicted the defendant of first-degree murder under section 9-1(a)(2) of the Code. While the requisite mental state of section 9-1(a)(2) is knowledge "that such acts create a strong probability of death or great bodily harm to that individual" ( 720 ILCS 5/9-1(a)(2) (West 2006)), the charging instrument and the jury instructions omitted the term "death" from this phrase. Defendant was charged with the knowledge that his acts created a strong probability of great bodily harm, but not death. The jury found him guilty of the charge.
On appeal, the defendant framed the issue as "`whether the findings of fact made by the jury pursuant to the definition and issues instructions that they received from the court were sufficient to support the conviction.'" Dunmore, 389 Ill. App. 3d at Ill0. We relied upon Stalions in holding that the jury's findings supported the conviction under section 9-1(a)(2). Dunmore, 389 Ill. App. 3d at Ill3 (the verdicts in Dunmore and Stalions are "functionality] equivalent"). We admonished the trial court that, "[a]s in Stalions, the better course in this case would have been to use instructions charging defendant with the knowledge that his acts created a strong probability of death or great bodily harm, but the trial court's deviation from the pattern instructions was not reversible error. However, using the applicable pattern instructions would have obviated the need to address the issue on appeal." Dunmore, 389 Ill. App. 3d at Ill3. We similarly admonish the State for parsing the mental state of section 9-1(a)(2) in the indictment in this case. Deviating from the statute when drafting charging instruments is unnecessary and should be avoided.
C. Sentence
• 3 The trial court sentenced defendant to natural life imprisonment pursuant to section 5-8 — l(a)(1)(c)(ii) of the Unified Code of Corrections ( 730 ILCS 5/5 — 8 — l(a)(1)(c)(ii) (West 2004)). This version of section 5-8 — l(a)(1)(c)(ii) provided that a person convicted of first-degree murder shall be sentenced to a term of natural life imprisonment when the death penalty is not imposed and the defendant "is a person who, at the time of the commission of the murder, had attained the age of 17 or more and is found guilty of murdering an individual under 12 years of age." 730 ILCS 5/5-8 — l(a)(1)(c)(ii) (West 2004). The death penalty was not imposed. Count IV alleged — and defendant concedes the State proved beyond a reasonable doubt — that he had attained the age of 17 or more and that Alex was under 12 years of age at the time of the murder.
Defendant contends that the sentence is void and must be vacated because Public Act 89-203 (Pub. Act 89 — 203, eff. July 21, 1995), which had made the sentence mandatory by amending the statute under which defendant was sentenced, had been declared unconstitutional by the Illinois Supreme Court in People v. Wooters, 188 Ill. 2d 500, 520 (1999). The Wooters court held that Public Act 89-203 violated the single-subject rule of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8). Wooters, 188 Ill. 2d at 520. A statute that violates the single-subject clause is void in its entirety. People v. Brown, 225 Ill. 2d 188, 198 (2007). As a result, all of the amendment's provisions, including the specific provision under which defendant was sentenced, are void ab initio as if they had never been passed. Brown, 225 Ill. 2d at 198-99. "The effect of enacting an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the amendment." People v. Gersch, 135 Ill. 2d 384, 390 (1990). The State confesses error and correctly concedes that the statutory language mandating a term of natural life imprisonment under section 5-8 — l(a)(1)(c)(ii) is void and was not reenacted after Wooters.
Defendant specifies two possible remedies for the sentencing error. He asks this court either to reduce his sentence to the statutory minimum or to remand the cause for resentencing. See 134 Ill. 2d R. 615(b). Rule 615(b)(4) provides a reviewing court with the authority to "reduce the punishment imposed by the trial court." 134 Ill. 2d R. 615(b)(4). Defendant argues that we should impose a 20-year term, the statutory minimum in effect before Public Act 89-203 was enacted, because the trial judge indicated that he would have done so if section 5-8 — l(a)(1)(c)(ii) as amended did not mandate a term of natural life. See 730 ILCS 5/5-8 — 1(a)(1)(a) (West 1994). The court commented that "I struggle with mandatory minimums and things of that sort, and I certainly find that the fact that the legislature has taken away our discretion in a case like this, which I don't think should be a life sentence, offends me to some degree, but yet I'm obligated to follow the law as it currently exists. Certainly if that was not the case and that statute did not exist, under normal circumstances this would be a minimum 20-year [sentence]." Referring to section 5-8 — l(a)(1)(c)(ii), the court added, "[t]here are times that we have to follow law that we don't agree with at all, and I will tell you that I totally disagree with the fact that in this set of facts that you should receive life imprisonment, but there are no exceptions, so under the circumstances that will be the order of the court."
The State has not commented on defendant's request for a sentence reduction under Rule 615(b)(4). Rather, the State advocates remanding the cause for a new sentencing hearing at which the trial court should impose a term according to the statutory language in effect when defendant committed the offense or when his sentence was imposed, if there was a change in the law. People v. Horrell, 235 Ill. 2d 235, 242 (2009) ("When a change in the law such as this occurs, the defendant must be given the opportunity to choose whether to be sentenced under the law that existed at the time of offense or the newly enacted law").
In People v. Jones, 168 Ill. 2d 367 (1995), the supreme court set forth guidelines for deciding whether to remand a cause for resentencing or simply reduce the sentence under Rule 615(b)(4):
"[W]e conclude a court of review has the power to reduce a defendant's sentence on appeal once it has been determined that the trial court's sentencing decision was unlawful or an abuse of discretion. Whether the appellate court should elect to choose a new sentence, rather than remand the matter for resentencing by the trial court, depends upon all of the surrounding circumstances of each particular case. For example, the parties may have no new or additional evidence to offer upon remand and the proof presented to the trial court may have been relatively straightfor-ward and uncomplicated. In such circumstances, it may be appropriate for the appellate court to impose sentence rather than exhaust additional judicial resources, as well as the resources of counsel for the State and the defense, that would be expended by ordering a new sentencing hearing. [Citation.] We reemphasize that the power to reduce a sentence should be exercised `cautiously and sparingly' ([ People v. O'Neal, 125 Ill. 2d 291, 300 (1988)]), but note that the authority to reduce a criminal sentence remains an important and valuable tool in the appellate court's choice of remedies when reviewing sentences imposed by the circuit court." Jones, 168 Ill. 2d at 378.
Although the trial court unambiguously expressed a desire to impose the minimum term of 20 years' imprisonment, we agree with the State that a remand is necessary. The sentencing hearing was perfunctory, which reflected the parties' recognition that the mandatory sentencing provision of section 5-8 — l(a)(1)(c)(ii) obviated the need to present evidence and argument on mitigation and aggravation. A remand to the trial court affords the parties the opportunity to present new or additional evidence. The power to reduce a sentence should be exercised "`cautiously and sparingly'" ( Jones, 168 Ill. 2d at 378, quoting O'Neal, 125 Ill. 2d at 300), and we decline to do so under the circumstances of this case. Of course, the trial court is free to exercise its discretion and impose the minimum sentence on remand if such a sentence is warranted.
For the preceding reasons, the judgment of the circuit court of Kane County is affirmed in part and vacated in part, and the cause is remanded with directions.
Affirmed in part and vacated in part; cause remanded with directions.
McLAKEN and HUTCHINSON, JJ., concur.
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