People v. Tellez-Valencia

No. 2--97--0853
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
) No. 96--CF--2024
v. )
)
GOMECINDO TELLEZ-VALENCIA, ) Honorable
) Raymond J. McKoski,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE McLAREN delivered the opinion of the court:
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
defendant in the case at bar would interfere with that vested
right. Thus, the State's argument fails.
Next, citing Johnson, 176 Ill. 2d 499, Bates v. Board of
Education, 136 Ill. 2d 260 (1990), People v. ex rel. Shore v.
Helmer, 410 Ill. 420 (1951), and People v. ex rel. Patterson v.
Fifer, 280 Ill. 506 (1917), the State argues that Public Act 89--
462 applies retroactively to the defendant because Public Act 89--
462 is valid curative legislation. Our supreme court recently
discussed curative legislation in Johnson:
"The general rule is that the legislature 'may by a curative
act validate any proceeding which it might have authorized in
advance, provided the power be so exercised as not to infringe
on or divest property rights and vested interests of the
parties involved.' " Johnson, 176 Ill. 2d at 518, quoting
Bates, 136 Ill. 2d at 268.
Unlike the legislation at issue in the cases cited by the
State (Johnson, 176 Ill. 2d at 521; Bates, 136 Ill. 2d at 265;
People ex rel. Shore, 410 Ill. at 425-26; People ex rel. Patterson,
280 Ill. at 508), the legislation at issue in this case contains no
validating language. Further, the legislation at issue in this
case affects a vested right of the defendant. See Wasson, 175 Ill.
App. 3d at 854.
Finally, the State argues that we should allow amendment of
the charging instrument to reflect the charge of aggravated
criminal sexual assault. 720 ILCS 5/12--14 (West 1996). Prior to
the original enactment of predatory criminal sexual assault of a
child by Public Act 89--428, the offense of aggravated criminal
sexual assault contained the same elements and language as the
relevant section of Public Act 89--428. The pertinent section of
Public Act 89--428 reads:
"(a) The accused commits predatory criminal sexual
assault if:
(1) the accused was 17 years of age or over and commits
an act of sexual penetration with a victim who was under 13
years of age when the act was committed[.]" Public Act 89--
428, eff. December 13, 1995 (codified at 720 ILCS 5/12--14.1
(West 1996), found unconstitutional by Johnson, 176 Ill. 2d 499, and reenacted by Public Act 89--462, effective May 29,
1996).
We note that the offense of criminal predatory sexual assault of a
child (as enacted in both Public Acts 89--428 and 89--462) contains
a harsher penalty if the accused caused great bodily harm to the
victim that is life threatening or results in permanent disability.
720 ILCS 5/12--14.1(b) (West 1996). However, the defendant in this
case was not charged under this portion of the statute.
Prior to the enactment of Public Act 89--428, the aggravated
criminal sexual assault statute read in pertinent part:
"(b) The accused commits aggravated criminal sexual
assault if:
(1) the accused was 17 years of age or over and commits
an act of sexual penetration with a victim who was under 13
years of age when the act was committed[.]" 720 ILCS 5/12--14
(West 1994).
Both offenses at issue are Class X felonies. Because the elements
and language contained in the predatory criminal sexual assault
statute are identical to the elements and language contained in the
above-cited aggravated criminal sexual assault statute, the State
urges this court to allow amendment of the charging instrument.
We agree with the State that formal defects in charging
documents may be amended at any time. People v. Nathan, 282 Ill.
App. 3d 608, 610 (1996). However, we do not agree with the State
that the defect at issue is merely formal. The charging instrument
in the case at bar failed to state an offense. Wasson, 175 Ill.
App. 3d at 854 (a charging instrument fails to state an offense if
the statute under which the defendant is charged and prosecuted is
not in effect on the date of the alleged offense). The defect in
the charging instrument is fatal and the entire charging instrument
is invalid. Wasson, 175 Ill. App. 3d at 855. Thus, the State
seeks to amend a substantive, not a formal, defect. Accordingly,
it can be amended only by the grand jury. People v. Patterson, 267
Ill. App. 3d 933, 938 (1993) (any amendment to an indictment must
originate with the grand jury unless such an amendment corrects
only a formal defect in the charge).
The State cites People v. Martin, 266 Ill. App. 3d 369 (1994),
People v. Hirsch, 221 Ill. App. 3d 772 (1991), and People v. House,
202 Ill. App. 3d 893 (1990), to support its argument. However, the
amendments in these cases occurred before trial. Martin, 266 Ill.
App. 3d at 373; Hirsch, 221 Ill. App. 3d at 777; House, 202 Ill.
App. 3d at 898. In the case at bar, the State seeks to change the
offense contained in the charging instrument on appeal, that is,
after the defendant has already been tried and convicted of another
offense. Thus, the cases cited by the State do not apply to the
case at bar.
In addition, the State cites People v. Sirinsky, 47 Ill. 2d 183 (1970), for the proposition that a charging instrument may be
amended during appeal. However, Sirinsky is factually
distinguishable from the case at bar. In Sirinsky, a traffic
citation issued by a municipal police officer contained the name of
the municipality in the caption. On appeal, the appellate court
amended the caption of the complaint to reflect correctly the
State, rather than the municipality. Our supreme court held that
the amendment was merely formal. Sirinsky, 47 Ill. 2d at 188. In
the case at bar, the amendment sought by the State is substantive,
not formal. Thus, the State s argument fails.
In conclusion, we find that the conviction of the defendant
under section 5/12--14.1(a)(1) of the Criminal Code of 1961 (720
ILCS 5/12--14.1(a)(1) (West 1996)) for acts which occurred prior to
the effective date of the reenacting law (Public Act 89--462) is
null and void. However, since Public Act 89--428 is void ab
initio, the defendant does not have a claim of double jeopardy.
People v. Zeisler, 125 Ill. 2d 42, 49 (1988). Thus, the State may
charge the defendant with any other applicable offense that was in
effect on the dates of the alleged acts, e.g., aggravated criminal
sexual assault (720 ILCS 5/12--14 (West 1996)).
The judgment of the circuit court of Lake County is reversed.
Reversed.
INGLIS and HUTCHINSON, JJ., concur.