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People v. Tellez-Valencia

March 27, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GOMECINDO TELLEZ-VALENCIA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 96--CF--2024 Honorable Raymond J. McKoski, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The defendant, Gomecindo Tellez-Valencia, seeks a summary reversal of his conviction of two counts of predatory criminal sexual assault of a child as enacted by Public Act 89--428. Pub. Act 89--428, art. 2, §260, eff. December 13, 1995 (codified in pertinent part at 720 ILCS 5/12--14.1 (West 1996)). Our supreme court declared Public Act 89--428 unconstitutional as violative of the single subject rule. Johnson v. Edgar, 176 Ill. 2d 499 (1997). We reverse.

On December 13, 1995, Public Act 89--428 was enacted into law. Article 2, section 260, created the offense of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1 (West 1996)). On May 7, 1996, a Cook County circuit court declared Public Act 89--428 unconstitutional in its entirety because it violated the single subject rule contained in article IV, section 8(d), of the Illinois Constitution. Ill. Const. 1970, art. IV, § 8(d). The defendant was charged by information with four counts of aggravated criminal sexual assault. 720 ILCS 5/12--14. (West 1996). On August 7, 1996, based on the same conduct, a grand jury returned a bill of indictment charging the defendant with four counts of predatory criminal sexual assault of a child. 720 ILCS 5/12--14.1(a)(1) (West 1996). The indictment alleged conduct occurring between May 1 and May 28, 1996.

A jury found the defendant guilty of two counts of predatory criminal sexual assault on December 19, 1996. However, on January 24, 1997, the trial court declared a mistrial and vacated the conviction because a juror who had been polled stated that his decision was made under duress. After a bench trial, the trial court found the defendant guilty of two counts of predatory criminal sexual assault and sentenced the defendant to 10 years' imprisonment for each offense to run concurrently.

On May 22, 1997, our supreme court affirmed the trial court in Cook County and declared Public Act 89--428 unconstitutional as violative of the single subject rule contained in article IV, section 8(d), of the Illinois Constitution. Johnson, 176 Ill. 2d 499. On May 29, 1996, the legislature passed Public Act 89--462, which reenacted the offense of predatory criminal sexual assault of a child. Pub. Act 89--462, art.2, §260, eff. May 29, 1996 (codified in pertinent part at 720 ILCS 5/12-- 14.1 (West 1996)). The reenacting act became effective May 29, 1996, one day after the alleged offenses occurred.

The defendant filed a motion in this court seeking summary reversal of his convictions, claiming that the offense he was charged with, convicted of, and sentenced for did not exist at the time the offense allegedly occurred. The State argues that we should deny the defendant any relief because the reenacting law (Public Act 89--462) should be applied retroactively. We disagree with the State.

Generally, amendments to statutes are construed to apply prospectively and not retroactively. People v. Digirolamo, 179 Ill. 2d 24, 50 (1997). However, where the legislature intends retroactive application and the amendment affects procedural and not substantive rights, it applies retroactively to cases pending on direct appeal. Digirolamo, 179 Ill. 2d at 50.

Nothing in the language of the reenacting law (Public Act 89--462) indicates that the legislature intended retroactive application. The legislature enacted Public Act 89--462 on May 29, 1996, and made it effective the same day. The express language of the act makes it applicable only to offenses that occurred on or after May 29, 1996. Thus, the legislature did not intend the law to be applied retroactively to the defendant in this case. See People v. Wasson, 175 Ill. App. 3d 851, 854 (1988).

We now address whether the reenacting law (Public Act 89--462) effected a change in substantive law. "Substantive law establishes rights and duties that may be redressed through the rules of procedure. [Citations.] Procedure involves matters relating to pleading, practice, and evidence." People v. Fiorini, 143 Ill. 2d 318, 333 (1991).

We determine that the reenacting law (Public Act 89--462) constitutes a substantive change in the law. The previous law, Public Act 89--428, created the offense of predatory criminal sexual assault of a child. When our supreme court invalidated Public Act 89--428 in Johnson (176 Ill. 2d at 516), the law became void ab initio. People v. Gersch, 135 Ill. 2d 384, 390 (1990). In other words, it is as if the law never existed. Gersch, 135 Ill. 2d at 390. Thus, before the reenacting law (Public Act 89--462) was passed on May 29, 1996, the offense of predatory criminal sexual assault of a child did not exist in Illinois. Accordingly, Public Act 89-462 created new substantive law. Because Public Act 89--462 created new substantive law and became effective after the defendant was alleged to have committed the offense, it cannot be applied retroactively to the defendant in this case. As a result, the defendant's conviction of predatory criminal sexual assault of a child is invalid. People v. Zeisler, 125 Ill. 2d 42, 50 (1988).

Citing People v. Nitz, 173 Ill. 2d 151 (1996) and its progeny (People v. Gibson, 292 Ill. App. 3d 842 (1997); People v. Perry, 292 Ill. App. 3d 705 (1997)), the State argues that Public Act 89--462 can be applied to the defendant retroactively because it constitutes a procedural rather than a substantive change in the law. We disagree.

In Nitz, our supreme court states in dicta that the change in the law regarding fitness hearings for defendants taking psychotropic medication is procedural. Nitz, 173 Ill. 2d at 162-63. In Gibson and Perry, the Appellate Court, Fifth and First Districts, respectively, gives the dicta in Nitz effect. Gibson, 292 Ill. App. 3d at 847; Perry, 292 Ill. App. 3d at 717. However, the law at issue in Nitz, Gibson, and Perry is distinguishable from the law at issue in the case at bar. The law at issue in Nitz, Gibson, and Perry "merely removes a presumption of unfitness" for defendants taking psychotropic medication (Gibson, 292 Ill. App. 3d at 847), whereas the law at issue in this case creates a criminal offense. Thus, these cases are distinguishable and not persuasive.

The State also argues that the reenacting law (Public Act 89--462) applies retroactively to the defendant because doing so does not interfere with a vested right. The State ignores the fact that the defendant had a right not to be charged with an offense that did not exist at the time of the alleged acts. Wasson, 175 Ill. App. 3d at 854. Applying Public Act 89--462 retroactively to the ...


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