Appeal from the Appellate Court for the Fourth District; heard
in that court on appeal from the Circuit Court of Macon County;
the Hon. Rodney A. Scott, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT: In 1972 defendant, Cedric Nicks, was convicted of three counts of armed robbery following a jury trial in the circuit court of Macon County, and the trial court imposed a sentence of 10 to 30 years in the penitentiary which was to be served consecutively to "any and all sentences heretofore imposed." (At the time that the sentence was imposed, defendant had been previously convicted of an unrelated armed robbery and had been sentenced to 12 to 20 years. That conviction was affirmed by the appellate court in People v. Nicks, 23 Ill. App.3d 443.) The appellate court, in reviewing the present case, affirmed the conviction for one count of armed robbery but reversed the convictions for the remaining two counts because the offenses arose from the same course of conduct. The appellate court refused to reduce the consecutive sentence that had been entered. (People v. Nicks, 23 Ill. App.3d 435.) We granted defendant's petition for leave to appeal, which raises the sole issue of the propriety of the consecutive sentence under section 5-8-4 of the Unified Code of Corrections. Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005-8-4, effective January 1, 1973.
The facts encompassing the armed robbery are recounted in the opinion of the appellate court and need not be set forth because the evidentiary sufficiency supporting defendant's conviction is not questioned.
Section 5-8-4 of the Unified Code of Corrections, as relevant to this appeal, provided:
"(c) The aggregate maximum of consecutive sentence[s] shall not exceed twice the maximum term authorized under Section 5-8-1 for the most serious felony involved. The aggregate minimum period of consecutive sentences shall not exceed twice the lowest minimum term authorized under Section 5-8-1 for the most serious felony involved. * * *
(e) In determining the manner in which consecutive sentences of imprisonment * * * will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents:
(3) the minimum period of imprisonment shall be * * * the aggregate of the minimum period of imprisonment imposed by the court * * * subject to paragraph (c) of this Section * * *.
(h) Paragraphs (e), (f) and (g) of this Section shall apply to persons in the custody of the Department of Corrections on the date this Act becomes effective and to those persons thereafter committed to the Department, provided, however, that paragraph (c) of this Section shall apply only to persons sentenced on or after this Act becomes effective." (Emphasis added.) (Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 1005-8-4(c), (e) and (h).)
Section 5-8-4(c) has since been modified to provide that the "aggregate minimum period of consecutive sentences shall not exceed the highest minimum authorized under Section 5-8-1 for the 2 most serious felonies involved." (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-4(c).) No contention is now raised by the parties to this appeal that the modification of section 5-8-4 is relevant to determination of the issue presented. In any event, if this statutory modification of section 5-8-4(c) would be construed as permitting sentences such as those imposed in this case, we have held that a defendant who was sentenced prior to the effective date of the Unified Code of Corrections, as here, could rely upon section 5-8-4(c) as originally enacted to seek modification of the consecutive sentences. People v. Williams, 60 Ill.2d 1, 16-17.
In People v. Morgan, 59 Ill.2d 276, this court ordered that consecutive sentences of 10 to 20 years for armed robbery be modified to be served concurrently by defendants with sentences of 100 to 199 years for murder. We predicated that decision upon section 5-8-4(c) of the Unified Code of Corrections, as originally enacted, noting that the aforementioned consecutive sentences exceeded twice the minimum sentence authorized by law for the more serious offense of murder, which was 14 years' imprisonment. People v. Williams, 60 Ill.2d 1, is to the same effect.
Defendant in this case relies on our holding in Morgan, and he argues that his consecutive armed robbery sentences are in violation of that decision because the aggregate minimum of his consecutive sentences, which totals 22 years, exceeds twice the statutory minimum for armed robbery, which totals 8 years. He specifically requests this court to order that his armed robbery sentences be served concurrently.
The State concedes the strong basis of defendant's position under the decisions of Williams and Morgan, which applied section 5-8-4(c) to consecutive sentences entered prior to the effective date of the Unified Code of Corrections. But the State requests this court to reconsider these decisions in light of the italicized provision of section 5-8-4(h) previously set forth. The State says that section 5-8-4(h) was not presented to this court for consideration in Williams and Morgan. Since defendant was sentenced prior to the effective date of the Unified Code of Corrections, it is the State's position that under the explicit language of section 5-8-4(h) the limitation on the aggregate minimum of consecutive sentences set forth in section 5-8-4(c) is not applicable to defendant. To hold as the State suggests would nullify the effect of Williams and Morgan for those defendants who received consecutive sentences prior to the effective date of the Unified Code of Corrections and who were in the course of direct appeals at the time that statute became effective. We deem this construction to be unconstitutional.
Section 8-2-4 of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008-2-4) required that, if the criminal prosecution had not reached "a final adjudication," the sentences under the Code would apply if they were less than under prior law. In People v. Chupich, 53 Ill.2d 572, we interpreted the term "final adjudication," as used in the Controlled Substances Act, to include that period until the criminal case is decided by the last direct appeal. And in People v. Harvey, 53 Ill.2d 585, we applied this construction to require reduction of the minimum sentences therein imposed to conform to the requirement specified in the Unified Code of Corrections.
The impact of Chupich and Harvey was to require the resentencing of a defendant who was sentenced under prior law if the initial sentence was less favorable than that established by the Unified Code of Corrections and a direct appeal of his conviction was pending at the time that the Code became effective. To accept the State's position pertaining to the imposition of consecutive sentences under prior law would nullify the Chupich and Harvey decisions in regard to the present defendant. We are unable to perceive a rational basis for such classification for those serving consecutive sentences while other inmates are afforded a sentence reduction under the Code. See People v. Sherman 57 Ill.2d 1, 4-5.
We further note that section 5-8-4(e) of the Code sets forth the procedure relating to the Department of Corrections' determination as to the manner of service for consecutive sentences. The minimum period of imprisonment is the aggregate minimum of the sentences imposed subject to paragraph (c) of section 5-8-4. The Council Commentary demonstrates the intendment that section 5-8-4(e) be applied to all inmates currently serving consecutive sentences for purposes of determining parole eligibility. (S.H.A. (1973), ch. 38, par. 1005-8-4, Council Commentary, at 485-86.) This intent is also manifest by section 5-8-4(h), which states that 5-8-4(e) is to be applied to all those in the custody of the Department of Corrections on the effective date of the Code. It would appear that the limitation of section 5-8-4(c) on consecutive sentences would be applied to those receiving such sentences prior to the effective date of the Code in relation to the determination of their parole ...