December 30, 1998
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
MAURICE DEAN, DEFENDANT-APPELLANT.
Appeal from the Circuit Court of Kane County. No. 96--CF--1218 Honorable Barry E. Puklin, Judge, Presiding.
The opinion of the court was delivered by: Justice Rathje
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
After a bench trial, defendant, Maurice Dean, was convicted of armed violence (720 ILCS 5/33A--2 (West 1996)) predicated on aggravated battery (720 ILCS 5/12--4(a)(1) (West 1996)) and home invasion (720 ILCS 5/12--11(a) (West 1996)). He received 10 years' imprisonment for armed violence and 6 years' imprisonment for home invasion. On appeal, defendant argues that (1) the evidence did not prove him guilty beyond a reasonable doubt; (2) his conviction of armed violence must be reversed because it is improperly based on aggravated battery with a deadly weapon (720 ILCS 5/12--4(b)(1) (West 1996)); and (3) his sentence for armed violence is not subject to the "truth-in-sentencing" law (730 ILCS 5/3--6--3(a)(2)(ii) (West 1996)).
We hold that (1) the evidence proved defendant guilty; (2) defendant's armed violence conviction is properly based on aggravated battery involving great bodily harm; and (3) defendant is not entitled to day-for-day good-conduct credit against his sentence for armed violence. We affirm.
Defendant contends, first, that he was not proved guilty because the State's occurrence witnesses, the victim and the victim's girlfriend, were unworthy of belief. Defendant observes that, before the stabbing, the victim had been drinking beer for several hours. A test shortly after the stabbing showed the victim's blood-alcohol content was 0.316, more than three times the minimum for legal intoxication (see 625 ILCS 5/11--501(a)(1) (West 1996)). According to defendant, the victim's girlfriend had also been drinking the day of the stabbing. Defendant asserts that the witnesses' drinking habits and alcohol consumption on the day of the offense make their testimony inherently untrustworthy.
Defendant notes other infirmities in the testimony. According to the officer who showed them a photographic lineup, neither the victim nor his girlfriend positively identified defendant; the girlfriend picked out someone else, although the victim did say that defendant's photograph looked like the attacker. Also, the victim and his girlfriend had a history of domestic violence, including several incidents where the police were called and the victim or his girlfriend soon dropped the charges. They admitted that, shortly before the stabbing, they had an argument of some sort. Defendant's posttrial motion introduced proof that, a week after the jury convicted defendant, the victim pleaded guilty to the aggravated battery of his girlfriend. As he did at trial, defendant urges that the witnesses may have framed him to cover up the result of one of their recurrent quarrels.
Our review is limited to asking whether all the evidence, when considered in the light most favorable to the prosecution, is sufficient to convince any rational fact finder that the elements of the offense have been proved beyond a reasonable doubt. People v. Brown, 169 Ill. 2d 132, 152 (1996). We do not retry the defendant. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). The fact finder weighs the credibility of the witnesses and resolves any conflicts or inconsistencies in their testimony, and we may not substitute our judgment on these matters for that of the fact finder. Digirolamo, 179 Ill. 2d at 46.
Given our deference to the fact finder's credibility decisions, we cannot say the evidence of defendant's guilt is insufficient. In court, both the victim and his girlfriend identified defendant as the perpetrator. They gave reasonably, although not entirely, consistent accounts of the events leading up to and following the attack. The victim also stated that a photograph of defendant looked like the perpetrator, although he did not make a positive identification.
Although the victim was almost certainly quite intoxicated when he was stabbed, there was--as the trial court noted--no evidence of how much his intoxication interfered with his ability to perceive the nature of the attack or identify his attacker. The victim's girlfriend testified that, in the hours before the stabbing, she had little to drink; the trial court could have credited this assertion. Defendant's characterization of these two witnesses as "habitual drunkards and alcoholics" inherently unworthy of belief is an overstatement, and one the trial court surely could properly reject after observing them testify. This case turned on the witnesses' credibility; once the trial court believed them, it had ample evidence of defendant's guilt.
Defendant's second contention is that his conviction of armed violence was an impermissible double enhancement because it was predicated on aggravated battery with a deadly weapon (720 ILCS 5/12--4(b)(1) (West 1996)). The trial court found that the conviction was properly predicated on aggravated battery causing great bodily harm (720 ILCS 5/12--4(a) (West 1996)). We agree with the trial court.
Armed violence may not be predicated on aggravated battery by use of a deadly weapon but may be based on aggravated battery causing great bodily harm. People v. Miller, 284 Ill. App. 3d 16, 21-22 (1996). As pertinent here, the indictment states that defendant, "while armed with a dangerous weapon, a knife, performed acts in violation of Illinois Compiled Statutes, Chapter 720, Section 5/12--4A [sic], and committed the felony of Aggravated Battery in that he stabbed [the victim]." Observing that the aggravated battery statute has no section "12--4A," defendant asserts that the use of the phrase "armed with a dangerous weapon" implies that the armed violence charge is predicated on aggravated battery by the use of a deadly weapon (720 ILCS 5/12--4(b)(1) (West 1996)).
We believe that the indictment properly charges defendant with armed violence based on section 12--4(a) and that the reference to "Section 5/12--4A" is an inconsequential typographical error. A formal defect in an indictment may be corrected at any time. 725 ILCS 5/111--5 (West 1996); People v. Kimbrough, 163 Ill. 2d 231, 244-45 (1994).
We reject defendant's assertion that the indictment actually charges armed violence based on aggravated battery with a deadly weapon. The count of the indictment charging defendant with armed violence nowhere refers to subsection 12--4(b)(1). The phrase "armed with a dangerous weapon" merely tracks the armed violence statute itself. See 720 ILCS 5/33A--2 (West 1996).
Defendant's third contention is that the "truth-in-sentencing" law (see 730 ILCS 5/3--6--3(a)(2)(ii) (West 1996)) does not apply to his 10-year sentence for armed violence. Defendant relies on People v. Reedy, 295 Ill. App. 3d 34 (1998), appeal allowed, No. 85191, 178 Ill. 2d 591 (1998), in which we held that Public Act 89--404 (Pub. Act 89--404, eff. August 20, 1995), through which the legislature originally enacted the truth-in-sentencing law, violated the Illinois Constitution's single subject rule (Ill. Const. 1970, art. IV, §8(d)). Thus, we concluded that the defendant in Reedy was entitled to day-for-day good-conduct credit as he would been have absent the new law. Reedy, 295 Ill. App. 3d at 44.
Although Reedy invalidated Public Act 89--404, we must still decide whether later-enacted truth-in-sentencing laws apply here. The legislature passed another act (Pub. Act 89--462, eff. May 29, 1996) with the same truth-in-sentencing law; later, it passed truth-in-sentencing via section 15 of Public Act 89--656 (Pub. Act 89--656, §15, eff. January 1, 1997). If either act applies here, Reedy is not dispositive.
Truth-in-sentencing legislation affects substantive rights, not merely procedures. Thus, whether it applies to a given case turns not on when the defendant was sentenced or when he filed his appeal but on whether he committed the offense before or after the effective date of the act. People v. Pitts, 295 Ill. App. 3d 182, 190 (1998). Here, defendant's offense occurred after Public Act 89--462 took effect but before the effective date of Public Act 89--656. Only the former act, if valid, could deprive defendant of day-for-day good-conduct credit.
However, the defendant has not challenged the constitutionality of Public Act 89--462. The defendant's argument is limited to citing Reedy. However, Reedy addressed only the validity of Public Act 89--404. Moreover, unlike Public Act 89--404, Public Act 89--462 does not violate the single subject rule.
The single subject rule ensures that the legislature addresses the difficult decisions it faces directly and subject to public scrutiny, rather than passing unpopular measures on the backs of popular ones. Johnson v. Edgar, 176 Ill. 2d 499, 515 (1997). The term "subject," in this context, is to be liberally construed, and the subject may be as broad as the legislature chooses; nonetheless, the matters included in the enactment must have a natural and logical connection. Johnson, 176 Ill. 2d at 515. The rule prohibits the inclusion " ' "of discordant provisions that by no fair intendment can be considered as having any legitimate relation to each other." ' [Citations.]" Johnson, 176 Ill. 2d at 515. The legislature must indeed go very far to cross the line to a violation of the single subject rule. Johnson, 176 Ill. 2d at 515-16.
In Reedy, we observed that Public Act 89--404's ten sections covered no fewer than "five distinct legislative subjects." Reedy, 295 Ill. App. 3d at 42. Among Public Act 89--404's highlights were (1) the removal of the homestead exemption from property subject to certain civil forfeiture proceedings; (2) an increase in the burden of proof for a criminal defendant asserting the insanity defense; (3) truth-in-sentencing legislation; and (4) new procedures for the perfection and attachment of hospital liens. Reedy, 295 Ill. App. 3d at 42. We rejected the State's argument that the title "governmental matters" indicated that Public Act 89--404 embraced a single subject. As this court was unable to identify the "natural and logical connection" uniting civil forfeiture, criminal sentencing and hospital liens, we held that Public Act 89--404 violated the single subject rule and was unconstitutional in its entirety. Reedy, 295 Ill. App. 3d at 42.
Public Act 89--462 is entitled "An Act in relation to criminal offenders" and is comprised of three articles. Article 1 is entitled "The Child Sex Offender and Murderer Community Notification Law"; article 2 is entitled "Amendatory Provisions"; and article 3 is entitled "Sex Offender Name Change." The "highlight" of Public Act 89--462 is the reenactment of the offense of predatory criminal sexual assault of a child. The offense had previously been enacted as part of Public Act 89--428, which subsequently was held unconstitutional in its entirety because it violated the single subject rule. See Johnson 176 Ill. 2d 499. The remaining provisions of Public Act 89--462 consist of amendments to various statutes, both civil and criminal, necessitated by the enactment of new offense and/or related to child sex offenders; amendments to the Juvenile Court Act of 1987 (705 ILCS 405/1--1 et seq. (West 1996)), regarding delinquent minors; and amendments to the Unified Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 1996)), including the reenactment of the truth-in-sentencing legislation.
Unlike the provisions of Public Act 89--404, the provisions of Public Act 89--462 are not discordant and do have a legitimate relation to each other. The subject of "criminal offenders" is not as broad a subject as that of "public safety," which the supreme court rejected in Johnson. Johnson, 176 Ill. 2d at 517. The truth-in-sentencing legislation is not so different from the other provisions of Public Act 89--462 and does not lack the "natural and logical connection" to the rest of Public Act 89--462 that was missing in the provisions of Public Act 89--404. See Reedy, 295 Ill. App. 3d at 42. Given the liberal construction to be applied to what constitutes a "subject" in this context, we conclude that Public Act 89--462 does not violate the single subject rule.
Additionally, even though the defendant has not raised it, we note that in People v. Nicholson, No. 4--97--0378 (4th Dist. September 30, 1998), the Appellate Court, Fourth District, in upholding Public Act 89--462, rejected the argument that Public Act 89--462 did not validate the truth-in-sentencing provisions of Public Act 89--404 because it was not a new enactment. Nicholson, slip op. at 8; People v. Bullard, 61 Ill. 2d 277 (1975). Relying on Davis v. City of Chicago, 59 Ill. 2d 439 (1974), the court stated:
"Here, as in Davis and unlike in Bullard and [Svenson v. Hanson, 289 Ill. 242 (1919)], we have an unusual situation, whereby language in a former bill, which was previously encumbered by other factors that rendered it constitutionally invalid, is restated in a bill under circumstances whereby it is constitutionally valid. In Davis, the language was invalid under the provisions of the Constitution of 1870. When restated, the language was not contrary to the Constitution of 1970 then in force and was treated as a new enactment. Here, we have language rendered invalid by the discordant provisions of the prior bill restated under circumstances in which it is clearly valid. It should similarly be treated as a new enactment." Nicholson, slip op. at 9.
We conclude that, inasmuch as we have found no constitutional infirmity to Public Act 89--462, its truth-in-sentencing provisions are applicable to defendant in this case.
The judgment of the circuit court of Kane County is affirmed.
GEIGER, P.J., and INGLIS, J., concur.