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10/20/94 PEOPLE STATE ILLINOIS v. WILLIE JAMESON ET

October 20, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
WILLIE JAMESON ET AL., APPELLANTS.



Bilandic, Heiple, Harrison

The opinion of the court was delivered by: Bilandic

CHIEF JUSTICE BILANDIC delivered the opinion of the court:

The defendants in this consolidated appeal were separately tried and convicted of various offenses. The defendants were then sentenced as Class X offenders under section 5-5-3(c)(8) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8)). The defendants appealed, claiming that their sentences must be vacated because the State did not give them notice in the charging instrument that they would be sentenced as Class X offenders. The appellate court affirmed the defendants' convictions and sentences. (252 Ill. App. 3d 604.) We allowed the defendants' petition for leave to appeal. 145 Ill. 2d R. 315(a).

Defendant Willie Jameson was convicted following a bench trial of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19-1), a Class 2 felony. At sentencing, the State introduced evidence of Jameson's prior felony convictions. The trial court then sentenced Jameson as a Class X offender (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8)) to a term of 12 years imprisonment.

Defendant Willie Davis was convicted following a bench trial of possession with intent to deliver 2.4 grams of cocaine (Ill. Rev. Stat. 1989, ch. 56 1/2, par. 1401(c)(2)), a Class 1 felony. At sentencing, the State offered evidence that Davis had numerous prior felony convictions. The trial court then sentenced Davis as a Class X offender (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8)) to a term of seven years imprisonment.

Defendant Larry Smith was convicted following a bench trial of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19-1), a Class 2 felony. The State introduced evidence of Smith's prior felony convictions and the trial court sentenced Smith as a Class X offender (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8)) to a term of 13 years' imprisonment.

All three of the defendants were sentenced as Class X offenders pursuant to section 5-5-3(c)(8) of the Uniform Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8)). That section states that a defendant shall be sentenced as a Class X offender if the defendant has previously been twice convicted of a Class 2 or greater class felony, and the commission and conviction dates of the prior felonies fall within the chronological order specified in the statute. Section 5-5-3(c)(8) provides in pertinent part:

"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8).

The defendants here do not dispute that their prior felony convictions made them eligible to be sentenced as Class X offenders under the above statute. (See People v. Williams (1992), 149 Ill. 2d 467, 174 Ill. Dec. 829, 599 N.E.2d 913.) Rather, the defendants assert that their sentences are improper because the State failed to notify them in the charging instrument of its intent to seek a Class X sentence upon conviction. The defendants contend that such notice is required under section 111-3(c) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 111-3(c)). Section 111-3(c) provides:

"When the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall statesuch prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State's intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purpose of this Section, 'enhanced sentence' means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense * * *; it does not include an increase in the sentence applied within the same level of classification of offense." Ill. Rev. Stat. 1989, ch. 38, par. 111-3(c).

The appellate court determined that section 111-3(c) did not obligate the State to give the defendants notice that they would receive Class X sentences. The appellate court found that section 111-3(c) requires the State to give a defendant pretrial notice only in situations where the State uses a defendant's prior conviction to enhance the classification of offense for which the defendant is convicted. The appellate court found that the legislature, in defining the term "enhanced sentence," specifically excluded situations where the length of the sentence is increased, but the classification of offense for which the defendant is convicted remains the same. The appellate court noted that, under section 5-5-3(c)(8), the length of a defendant's sentence is increased but the classification of offense for which the defendant is convicted remains the same. Thus, the appellate court concluded that the State was not required to give the defendants notice that they would receive Class X sentences.

The defendants argue that the appellate court improperly concluded that section 111-3(c) applies only when a prior conviction is used to elevate the classification of offense for which the defendant is convicted. The defendants argue that the plain language of the statute shows that the State must also give a defendant pretrial notice whenever that defendant, charged with oneoffense, may be eligible for a sentence normally imposed for higher classes of offenses because of the defendant's prior convictions. The defendants argue that the definition of an "enhanced sentence" contained in section 111-3(c) encompasses circumstances where a defendant is convicted of one classification of offense, but the sentence imposed is increased to a higher classification offense because of a prior conviction.

The State responds that section 111-3(c) does not apply to section 5-5-3, the mandatory sentencing provision at issue. The State argues that section 111-3(c) requires the State to give a defendant pretrial notice only when the defendant's prior convictions will enhance the offense with which the defendant is charged from one class of offense to a higher classification of offense. For example, notice must be given if the prior conviction elevates the charged offense from a misdemeanor to a felony, or from a lower class felony (e.g., Class 2) to a higher class felony (e.g., Class X). The State points out that all of the appellate court decisions that have considered the issue have rejected the defendants' construction of section 111-3(c). ( People v. Newell (1994), 259 Ill. App. 3d 819, 198 Ill. Dec. 185, 632 N.E.2d 244; People v. Murphy (1994), 258 Ill. App. 3d 1065, 197 Ill. Dec. 133, 630 N.E.2d 1257; People v. Harris (1994), 259 Ill. App. 3d 106, 196 Ill. Dec. 882, 630 N.E.2d 1047; People v. Cole (1993), 256 Ill. App. 3d 1, 195 Ill. Dec. 249, 628 N.E.2d 713; People v. Contreras (1993), 241 Ill. App. 3d 1023, 182 Ill. Dec. 415, 609 N.E.2d 949.) The State notes that all of these decisions have held that section 111-3(c) does not require the State to give defendants pretrial notice that they would receive Class X sentences pursuant to section 5-5-3 because of prior felony convictions.

I

In construing section 111-3(c), we must ascertain and give effect to the legislature's intent. ( American Country Insurance Co. v. Wilcoxon (1989), 127 Ill. 2d 230, 130 Ill. Dec. 217, 537 N.E.2d 284; see 2A N. Singer, Sutherland on Statutory Construction§ 45.05 (5th ed. 1992).) Ordinarily, the language of the statute provides the best evidence of the legislature's intent. ( Wilcoxon, 127 Ill. 2d 230, 130 Ill. Dec. 217, 537 N.E.2d 284.) In the instant case, both the defendants and the State submit that the language of section 111-3(c) is clear and unambiguous. The parties, however, offer conflicting interpretations for this supposedly clear and unambiguous language. The defendants argue that the language of section 111-3(c) clearly requires the State to notify a defendant that he is eligible to receive a mandatory Class X sentence pursuant to section 5-5-3(c)(8), while the State argues that the same language clearly indicates that no notice is required in such circumstances.

Our review of section 111-3(c) persuades us that the language used therein is not clear and unambiguous. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses. (2A N. Singer, Sutherland on Statutory Construction § 45.02 (5th ed. 1992).) Section 111-3(c) may reasonably be construed both in the manner that the State proposes and in the manner that the defendants propose. Where the language of a statute is ambiguous, it is appropriate to consider other sources to ascertain the legislature's intent. People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197, 180 Ill. Dec. 738, 607 N.E.2d 1251.

When the language of section 111-3(c) is considered in light of the legislative history of that statute, it is evident that the legislature intended that statute to reach those instances in which a prior conviction elevates the classification of the offense with which a defendant is charged and convicted, rather than simply the sentence imposed. The legislature did not intend to require the State to give defendants pretrial notice that they would be sentenced as Class X offenders pursuant to section 5-5-3.

During the debates over the bill in the House ofRepresentatives, Representative Homer stated that the bill applied to "cases where the State's Attorney has charged someone with an upgraded offense as a result of a prior conviction for the same offense." (Emphasis added.) (86th Ill. Gen. Assem., House Proceedings, April 17, 1989, at 7.) Representative Homer gave as an example the retail theft statute, in which a second conviction elevates the offense from a misdemeanor to a felony.

Representative Homer noted that there were more than two dozen statutes in the Criminal Code, similar to the retail theft statute, that permit a defendant to be charged with an upgraded offense when that defendant has a prior conviction for the same offense. (See Appendix.) Representative Homer also suggested that the purpose of section 111-3(c) was to clarify the confusion that existed in the Criminal Code concerning the procedures the State must follow when drafting a charging instrument.

When Representative Homer's comments are considered in conjunction with the 26 statutes he referred to, it is apparent that the legislature intended section 111-3(c) to serve as a general, "catch-all" notice provision, requiring the State to give notice in the charging instrument whenever a defendant will be charged with a higher classification offense because of prior convictions. A general notice provision was needed because only 9 of the 26 statutes which permit the State to elevate an offense to a higher classification of offense based upon a prior conviction include a provision within the statute requiring the State to notify the defendant of its intent to elevate the classification of offense because of a prior conviction. (See 720 ILCS 5/11-14(b), 11-15(b), 11-17(b), 11-18(b), 11-19(b), 12-13(b), 16-1(b)(2), 16-5(c), 16A-10(2) (West 1992).) The notice provisions in these nine statutes are almost identical to the notice provision contained in section 111-3. Theremaining statutes, which similarly allow the State to increase the offense classification when a defendant has a prior conviction, do not contain a notice provision. (720 ILCS 5/11-17.1(c), 12-4.3(a), 12-15(d), 12-20(a), 16-3.1(b), 16-14(d)(2), 16-15(d), 16D-3(b)(2), 16D-3(b)(3), 17-1(B)(e), 17-2(d), 17-11, 21.2-4, 24-1, 26-1(b), 28-1(c), 635/4 (West 1992).) The legislature enacted section 111-3(c) as a catch-all notice provision, thereby requiring the State to notify a defendant in all cases where it intends to charge the defendant with a higher classification of offense based on the defendant's prior convictions for that same offense.

The legislature enacted section 111-3(c) to ensure that a defendant received notice, before trial, of the offense with which he is charged. The Governor's amendatory veto, which added the third sentence to section 111-3(c) to define the term "enhanced sentence," was intended to reflect the legislature's intent in this regard. There is no evidence that the legislature intended torequire the State to give a defendant pretrial notice of the possible sentence (e.g., under section 5-5-3) that he might receive. In fact, the definition of the term "enhanced sentence" clarifies that the notice requirement in section 111-3(c) does not apply in circumstances where the sentence is increased because of a prior conviction, but the classification of the offense remains the same.

Construing the ambiguous language in section 111-3(c) in light of the legislative history of that section, it is apparent that the legislature did not intend to require the State to notify defendants that they would be sentenced as Class X offenders. Under section 5-5-3(c)(8), a defendant's sentence is increased because of prior felony convictions, but the classification of offense with which the defendant is charged and convicted remains the same. Thus, section 111-3(c) ...


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