APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Leroy Peoples appeals from his conviction for burglary in the Circuit Court of Kankakee County, following a jury trial. He was sentenced to a term of from 2 to 6 years imprisonment.
The trial court, pursuant to section 8-2-4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1008-2-4(b)), informed the defendant, prior to sentencing, that he had a right to elect to be sentenced under the law in effect at the time of his sentencing (being the new determinate sentencing in effect after February 1, 1978). After defendant had been informed of the essential differences between the two sentencing schemes, defendant chose to be sentenced under the old sentencing law in effect at the time of his offense. In accordance with this election, as we have noted, the court sentenced him to a term of from 2 to 6 years in prison.
Defendant now appeals that sentence and challenges the sufficiency of the election given him by the trial court on "due process" and "equal protection" grounds. He argues that it is constitutionally required that defendants eligible to elect between the old and the new sentencing provisions be informed not only of the differences between the two laws, but also of the specific intended sentences which would be imposed under each sentencing scheme. It is argued that such information, of the precise sentence which would be imposed, is necessary in order for a defendant to make an informed and meaningful election.
Section 8-2-4(b) of the Unified Code of Corrections states:
"(b) Prosecution for any violation of law occurring before the effective date of this amendatory Act of 1977 is not affected or abated by this amendatory Act of 1977. If the defendant has not been sentenced before the effective date of this amendatory Act of 1977 [being February 1, 1978], he shall have the right to elect to be sentenced under the law as it existed at the time of his offense or under the law in effect on and after the effective date of this amendatory Act of 1977. If a sentence has been imposed before the effective date of this amendatory Act of 1977, the defendant shall not have the right of election even though his case has not been finally adjudicated on appeal; however, where eligible, he shall have the rights provided by Section 3-3-2.1 of this Code." Ill. Rev. Stat., 1978 Supp., ch. 38, par. 1008-2-4(b).
Defendant's due process contentions are twofold. It is contended that the election provided for in section 8-2-4(b) is constitutionally required (citing People v. Hollins (1972), 51 Ill.2d 68, 280 N.E.2d 710, and People v. Bedford (1st Dist. 1977), 53 Ill. App.3d 1005, 369 N.E.2d 84). From this premise, defendant argues that in order for the constitutionally required election to be meaningful, and for any choice to be "informed," that a defendant must be advised of the specific sentences that the court would impose under each sentencing scheme.
1 The difficulties with this argument are manifest. The principal difficulty is that the premise is faulty since the origin of the election provided in section 8-2-4(b) is statutory and not constitutional. There is no constitutional requirement that the election be given to the defendants. As recently stated by the Illinois Supreme Court in People v. Grant (1978), 71 Ill.2d 551, 561, 377 N.E.2d 4, where the court discusses a constitutional challenge to this section:
"* * * the ability to elect to be sentenced under a law enacted after the date of the commission of a crime is not a constitutional right but a benefit conferred solely by statute. It is not unconstitutional for the legislature to confer such benefit only prospectively, neither is it unconstitutional for the legislature to specify `a classification between groups differently situated, so long as a reasonable basis for the distinction exists.' [Citation.]"
In the case relied upon by the defendant, People v. Hollins (1972), 51 Ill.2d 68, 280 N.E.2d 710, the defendant was denied his right to make an election between differing sentencing schemes. The supreme court emphasizing the great discrepancy in possible sentences for the defendant under the two schemes, concluded that the court's failure to inform the defendant of his right to elect constituted a violation of due process. (51 Ill.2d 68, 71.) However, in People v. Gonzalez (1974), 56 Ill.2d 453, 308 N.E.2d 587, the Illinois Supreme Court indicated that Hollins should be limited to its facts and that a failure to advise a defendant of a right to make a sentencing election did not automatically constitute a constitutional violation. Neither case dealt with section 8-2-4(b), the section at issue before us, although the Gonzalez holding signaled the determination actually made in People v. Grant, from which we have quoted. As to section 8-2-4(b), the decision in People v. Grant, that the election therein provided is statutory and not constitutionally required, is dispositive of the question raised by the defendant. The cases cited by the defendant concerning the requirements for a waiver of constitutional rights are, accordingly, not applicable to the issue of what is necessary under the statute.
2 Since it is obvious that the election provided is statutory, we must look to the language of the statute to determine what is required. The statute determines what a defendant has a right to be informed of, prior to making the election. In examining the pertinent language of the statute, which has been set out previously, we find no indication that the legislature intended a defendant to be given a choice between specific sentences which would be imposed under each sentencing law. Section 8-2-4(b) gives the defendant the right to elect "to be sentenced under the law as it existed at the time of his offense or under the law in effect" after the effective date of the amendatory act of 1977. This section gives defendants the right to elect under which law they wish to be sentenced, not the right to elect which sentence a defendant would wish to be imposed. The election given is clearly between sentencing schemes and not sentences. The legislature contemplated sentencing by the court after an election by a defendant of which law should be applied. The practical effect of the construction contended by the defendant would be that the court would be required to set sentences before the election, and the defendant would then choose which sentence he preferred. We find no support for the defense position that the statute requires a defendant be given a choice between specific sentences. On this issue, in People v. Dozier (4th Dist. 1979), 67 Ill. App.3d 611, 385 N.E.2d 155, 158, the appellate court, after reciting that although the section gives the defendant the right to elect to be sentenced, under either law as it existed at the time of his offense or the law in effect at the time of sentencing, stated:
"* * * there is no requirement statutory, decisional, or by rule that the election be knowing and intelligent, nor that such election constitutes a waiver of a constitutional right, nor that the sentencing judge must explain the variances between the alternative acts, nor that the trial court admonish him as to what will or might be his best or most advantageous choice, nor that the trial judge must tell him in advance of election what the sentence will be under each act."
3 In the instant case, defendant Peoples was informed of his right to elect under which law he would be sentenced, and he was also informed of the differences and consequences which would flow from an election under either sentencing law. His election, therefore, so far as the court needed to provide, was a knowing and informed one. While the question of whether the court was required to explain the differences between the laws to this defendant is not before us, since the explanation was given, we do note the advisability of that practice, since failure to do so by both trial counsel, who has the primary obligation, and the court, might render any election by such defendant subject to subsequent challenge. We believe that the legislature contemplated that the election would be made by the defendant informed of the differences between the two laws. We believe that this would make the right to make the selection meaningful. In the instant case we conclude that the action by the trial court fully complied with the statute and that there was no due process violation in failing to inform the defendant of specific sentences that the court intended to impose under each law.
The second challenge which defendant makes to section 8-2-4(b) is that it violates the equal protection rights of a defendant in the position of the instant defendant. In support of this argument, defendant points to section 3-3-2.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-3-2.1) which gives to inmates incarcerated in the Department of Corrections as of February 1, 1978 (i.e., those already serving sentences imposed under the old law), the right to choose between parole eligibility under their previously imposed sentences and a fixed release date reduced by good time credit, as set by the Prisoner Review Board. The defense argues that those persons convicted and incarcerated as of February 1, 1978, and those persons convicted but not yet sentenced as of February 1, 1978, are similarly situated. The defense contends that there is no rational basis for distinguishing in the sentencing laws between these two classes of similarly situated persons. Defendant contends that the legislation giving the former class a specific release date, while giving the latter an election of which sentencing law the defendant might wish to be sentenced under, discriminates unconstitutionally against the latter class ...