No. 59263. — Appeal from the Appellate Court for the Third
District; heard in that court on appeal from the Circuit Court of
Fulton County, the Hon. William L. Randolph, Judge, presiding.
No. 59295. — Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County, the Hon. Kenneth Gillis, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Walter La Von Pride, of Chicago, for appellant.
Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley, State's Attorney, of Chicago (Mark L. Rotert, Assistant Attorney General, of Chicago, and Michael E. Shabat, Joan S. Cherry and Jeanette Sublett, Assistant State's Attorneys, of counsel), for the People.
Defendant Shirley Fernetti was charged by information with two counts of murder, one count of involuntary manslaughter, and one count of armed violence. Following a bench trial in the circuit court of Fulton County, she was found guilty of the offenses of involuntary manslaughter and armed violence. Since both charges were based on the same act, the trial court entered judgment only on the greater offense, armed violence. The defendant was then sentenced to the minimum term of six years. On appeal, the appellate court affirmed. 117 Ill. App.3d 44.
Similarly, defendant James McGinnis was charged by information in Cook County with two counts of murder and one count of armed violence. After a bench trial, he was found guilty of involuntary manslaughter and armed violence based on involuntary manslaughter. The defendant's involuntary-manslaughter conviction was vacated by the court, and he was sentenced to the minimum term of six years on the armed-violence conviction. On appeal, the appellate court, by order (87 Ill.2d R. 23), affirmed defendant's conviction and sentence (116 Ill. App.3d 1172). Pursuant to our Rule 315(a) (87 Ill.2d R. 315(a)), we granted leave to appeal in each case and consolidated them for the purpose of review.
The facts in each case are not in dispute and are adequately stated in the appellate court dispositions. The issues to be resolved herein pertain to law, not facts. The common questions are: (1) Is an issue raised for the first time in this court waived; and, if not, (2) may the offense of involuntary manslaughter serve as a predicate felony under the armed-violence statute (Ill. Rev. Stat. 1981, ch. 38, pars. 33A-1 through A-3)? Additionally, defendant McGinnis argues that the armed-violence statute is unconstitutional as it violates the fifth, eighth and fourteenth amendments to the Federal Constitution.
As the State correctly points out, neither defendant specifically questioned whether involuntary manslaughter could serve as a predicate felony for armed violence in either the trial or appellate court. This court has often stated, as a general proposition of law, that issues not presented in the lower courts> are waived for purposes of further review. (People v. Myers (1981), 85 Ill.2d 281, 291; People v. Williams (1977), 66 Ill.2d 179, 189; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill.2d 303, 313.) This general rule, however, is not without exception. It has long been recognized that a change in law will be given effect while a case is on direct review. (See United States v. Schooner Peggy (1801), 4 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49, 51; Linkletter v. Walker (1965), 381 U.S. 618, 627, 14 L.Ed.2d 601, 607, 85 S.Ct. 1731, 1736; People v. McCloskey (1971), 2 Ill. App.3d 892, 900 (supplemental opinion on rehearing).) This rule applies where a judicial decision has intervened, as well as where a statutory change has altered the law. (See Linkletter v. Walker (1965), 381 U.S. 618, 626, 14 L.Ed.2d 601, 606, 85 S.Ct. 1731, 1736.) The above-cited cases acknowledge the duty of a reviewing court to apply existing law. Yet the court cannot perform this duty if the litigants are prevented from noting such a change in their briefs due to their failure to previously raise the point.
In the case at bar, both defendants were tried and their appeals completed prior to this court's decision in People v. Alejos (1983), 97 Ill.2d 502. As a result of that decision, voluntary manslaughter cannot be enhanced to a Class X felony under the armed-violence provisions of the criminal code. The defendants, who had been convicted of the Class X offense of armed violence based on the less serious offense of involuntary manslaughter, subsequently sought leave to appeal to this court. Citing Alejos, they argue that the legislature did not intend armed violence to be predicated on involuntary manslaughter.
Applying the above-stated principles of law, it would appear that, in the interest of fairness and substantial justice, the defendants' argument should be addressed. We realize that our decision in Alejos concerned the application of the armed-violence provisions to the predicate offense of voluntary manslaughter. Nonetheless, for reasons to be set out later in this opinion, we believe that the change in the law occasioned by Alejos has bearing on these cases. To decline to address this issue, therefore, would not only lead to a serious injustice in the instant cases, but would also leave the law in a confused state. Accordingly, we hold that under the circumstances recited herein the exception to the waiver rule contained in our Rule 615(a) (87 Ill.2d R. 615(a)) is applicable to the instant cases. We turn, therefore, to the issue presented.
The armed-violence statute provides:
"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." Ill. Rev. Stat. 1981, ch. 38, par. 33A-2.
The State argues that the legislature intended what the plain meaning of the statute implies. Since involuntary manslaughter is a Class 3 felony, the State maintains that a charge of armed violence is properly predicated upon it. According to the State, this court implicitly agreed with the above contentions when it upheld a conviction for armed violence based upon involuntary manslaughter in People v. Simmons (1982), 93 Ill.2d 94. However, the issue before the court in the instant appeal was never raised, briefed or passed upon in Simmons, which was decided prior to Alejos. Therefore, the State's conclusion that Simmons impliedly held that a conviction for armed violence is properly predicated on involuntary manslaughter is without merit.
The court did address the applicability of the armed-violence provisions to the offense of voluntary manslaughter in Alejos. There we held that voluntary manslaughter could not form the basis for an armed-violence conviction because the legislature did not intend the Class X consequences of armed violence to apply to a non-deliberate act. The State does not contend that there is a distinction between voluntary and involuntary manslaughter sufficient, in these cases, to produce a result different ...