People v. Granados
Annotate this Case
Docket Nos. 79056, 79057 cons.--Agenda 5--March 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HILARION GRANADOS,
Appellee.
Opinion filed May 23, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The issue in these consolidated appeals is whether the circuit court was
authorized to impose extended-term sentences on the defendant, Hilarion
Granados, for each of his four felony convictions. In each of two cases, the
defendant pled guilty to one count of driving under the influence of alcohol
and one count of driving while license revoked. The circuit court of
Whiteside County found the defendant subject to an extended-term sentence of
six years' imprisonment for each conviction. The defendant appealed in both
cases. The appellate court held that the defendant was not subject to
extended-term sentences and reduced the defendant's sentences accordingly.
Nos. 3--93--0198, 3--93--0884 (unpublished orders under Supreme Court Rule
23). We accepted the State's petition for leave to appeal in each case (155
Ill. 2d R. 315), and consolidated them. We now reverse the judgment of the
appellate court and affirm the sentences imposed upon the defendant by the
circuit court in both cases.
FACTS
In case no. 79057, the defendant was charged by information on June 15,
1992, with one count of driving under the influence of alcohol (DUI) and one
count of driving while license revoked (DWLR). Each offense was alleged to
have occurred on June 12, 1992. The DUI offense was charged as a Class 4
felony based on the defendant's prior DUI convictions. The DWLR offense was
also charged as a Class 4 felony based on the defendant's prior DWLR
convictions. On September 1, 1992, the defendant pled guilty to each count in
open court and was admonished that he could receive extended-term sentences
of three to six years' imprisonment. On October 16, 1992, the defendant was
sentenced on each count to an extended term of six years' imprisonment.
The defendant filed a pro se notice of appeal to the appellate court on
January 20, 1993. The appellate court dismissed that appeal. Thereafter, the
defendant filed a petition for post-conviction relief in which he charged
that his trial counsel was ineffective for failing to "file an appeal" for
him. The trial court denied the petition. The defendant appealed to the
appellate court, third district, arguing that his counsel was ineffective
because he was not subject to extended-term sentences. The appellate court
agreed and reduced the defendant's sentences to the maximum nonextended term
of three years' imprisonment. No. 3--93--0884 (unpublished order under
Supreme Court Rule 23).
In case no. 79056, the defendant was charged by information on September
25, 1992, with one count of DUI and one count of DWLR, each offense alleged
to have occurred on September 17, 1992. Each offense was charged as a Class
4 felony based upon the defendant's prior convictions. On November 25, 1992,
the defendant pled guilty to each count in open court, and was admonished
that he could receive extended-term sentences of three to six years'
imprisonment. On January 15, 1993, the defendant was sentenced on each count
to an extended term of six years' imprisonment. These sentences were ordered
to run consecutively to those imposed in case no. 79057.
The defendant filed motions to withdraw his guilty pleas and for a
reduction of his sentences. The trial court denied these motions. The
defendant appealed to the appellate court, third district, on the ground that
he was not subject to extended-term sentences. The appellate court agreed and
reduced the defendant's sentences to the maximum nonextended term of three
years' imprisonment. No. 3--93--0198 (unpublished order under Supreme Court
Rule 23).
The third district of the appellate court applied the same reasoning in
reducing the defendant's sentences in each appeal. The appellate court
determined that the defendant's sentencing was governed by the third
district's decision in People v. Spearman, 108 Ill. App. 3d 237 (1982),
because the defendant's crimes were committed within the third district of
the appellate court in June and September of 1992, and Spearman was the
controlling precedent in that district at that time. Spearman held that the
extended-term sentencing statute was not applicable to felonies that had been
enhanced from misdemeanors by the defendant's prior convictions. The
appellate court noted that it had expressly overruled Spearman in People v.
Martin, 240 Ill. App. 3d 260 (1992), a decision announced in December of
1992. The opinion in Martin, however, stated that it was limited to
prospective application only because it had overruled the third district's
prior precedent, Spearman. Therefore, the appellate court found that Martin
did not apply to the defendant's sentencing because the defendant's crimes
occurred before Martin was announced. The appellate court further found that
to apply Martin retroactively to the defendant would violate due process as
the equivalent of an ex post facto law. The appellate court noted that this
court's recent decision in People v. Hicks, 164 Ill. 2d 218 (1995), had
decided that the extended-term statute applied to felonies enhanced from
misdemeanors. Hicks was therefore in accordance with Martin and contrary to
Spearman. The appellate court determined, however, that Hicks could not be
retroactively applied to the defendant.
ANALYSIS
As noted, in each of these cases, the defendant pled guilty to the
offenses of driving under the influence of alcohol (625 ILCS 5/11--501(a),
(d)(1) (West 1992)) and driving while license revoked (625 ILCS 5/6--303
(West 1992)). Each of these offenses is classified as a Class A misdemeanor.
625 ILCS 5/11--501(c), 6--303(a) (West 1992). The Illinois Vehicle Code
provides, however, that DUI is enhanced to a Class 4 felony when the
defendant has previously been convicted of that same offense two or more
times. 625 ILCS 5/11--501(d)(1) (West 1992). Likewise, DWLR is treated as a
Class 4 felony when the defendant has previously been convicted of that
offense and the original revocation or suspension was the result of a
violation of the DUI statute. 625 ILCS 5/6--303(d) (West 1992). At the time
the defendant committed his offenses, he had at least three prior DUI
convictions and eight prior DWLR convictions. There is no dispute that each
of the defendant's offenses in the instant cases was properly charged as a
Class 4 felony based upon his prior convictions.
The defendant was found subject to an extended-term sentence for each of
the instant convictions pursuant to section 5--5--3.2(b)(1) of our Unified
Code of Corrections. 730 ILCS 5/5--5--3.2(b)(1) (West 1992). Pursuant to that
section, an extended-term sentence may be imposed when a defendant:
"is convicted of any felony, after having been previously
convicted *** of the same or similar class felony or greater class
felony, when such conviction has occurred within 10 years after the
previous conviction, excluding time spent in custody, and such
charges are separately brought and tried and arise out of different
series of acts." 730 ILCS 5/5--5--3.2(b)(1) (West 1992).
The extended-term sentence permissible for a Class 4 felony is a term of
imprisonment not less than three years and not more than six years. 730 ILCS
5/5--8--2(a)(6) (West 1992).
The defendant does not dispute that his past criminal convictions
satisfied the requirements of section 5--5--3.2(b)(1). Nevertheless, the
defendant contends he was not subject to extended-term sentencing under that
provision. The defendant's sole basis for this contention is that his instant
Class 4 felony convictions for DUI and DWLR do not amount to felonies within
the meaning of that section. The defendant argues that the phrase "any
felony" in section 5--5--3.2(b)(1) does not encompass a misdemeanor that has
been enhanced to a felony by reason of prior convictions.
The defendant's contention was recently rejected by this court in People
v. Hicks, 164 Ill. 2d 218 (1995). In Hicks, this court was asked to resolve
a conflict among the decisions of our appellate court with respect to whether
a trial court may impose an extended-term sentence for a felony conviction
where that felony was enhanced from a misdemeanor because of the defendant's
past criminal convictions. This court in Hicks rejected the defendant's
contention that the phrase "any felony" in the extended-term sentencing
provision was ambiguous and should be construed to exclude such enhanced
misdemeanors. Rather, we found, the plain language of the provision
explicitly states that it applies to "any felony" and makes no exception for
misdemeanors that have been enhanced to felonies in accordance with the
legislature's direction. The words "any felony," we concluded, are broad in
scope and apply to a misdemeanor that has been enhanced to a felony by reason
of prior criminal convictions. Hicks, 164 Ill. 2d at 223. This court's
holding in Hicks thus defeats the defendant's argument that the phrase "any
felony" in section 5--5--3.2(b)(1) does not encompass his felony convictions
in the instant cases.
The defendant contends that Hicks should not apply to him because his
offenses occurred before Hicks was announced by this court. As a general
rule, however, this court's decisions apply to all cases that are pending
when the decision is announced, unless this court directs otherwise. See
Lannom v. Kosco, 158 Ill. 2d 535, 538 (1994); People v. Stack, 112 Ill. 2d 301, 309 (1986); People v. Phillips, 219 Ill. App. 3d 877, 879 (1991). But
cf. Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708
(1987); Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060
(1989) (discussing rules of retroactivity where a judicial decision announces
a new constitutional rule of criminal procedure that is favorable to the
defendant). We did not direct that our decision in Hicks be applied
prospectively only. To the contrary, we applied our interpretation of section
5--5--3.2(b)(1) to uphold the extended-term sentence imposed on Hicks, who
committed his crime in February of 1992. The defendant's cases were pending
in the appellate court at the time this court announced its decision in
Hicks. Hicks therefore applies and defeats the defendant's claim.
The defendant argues, however, that the application of Hicks to his
cases would violate the prohibition on ex post facto laws because Hicks
constituted a change from the law which had been expressed at the time of his
crimes. The defendant contends that the controlling law at the time of his
offenses was the rule stated in a decision of the third district of our
appellate court, People v. Spearman, 108 Ill. App. 3d 237 (1982). In
Spearman, the defendant had been sentenced to an extended term of five years'
imprisonment for stealing less than $15 worth of meat from a supermarket. The
appellate court in that case held, citing "the interest of lenity," that an
extended-term sentence was improperly imposed because section 5--5--3.2(b)(1)
did not authorize the imposition of an extended-term sentence for a
misdemeanor that has been enhanced to a felony because of prior convictions.
Spearman, 108 Ill. App. 3d at 240.
The defendant acknowledges that Spearman was expressly overruled by the
third district of the appellate court in a decision filed in December of
1992, People v. Martin, 240 Ill. App. 3d 260 (1992). Martin interpreted
section 5--5--3.2(b)(1) in the same manner this court did in Hicks. The
defendant also acknowledges that Spearman is no longer valid after this
court's decision in Hicks. The defendant nonetheless contends that his
sentencing in the instant cases must be governed by Spearman because his
offenses occurred within the third district of the appellate court in June
and September of 1992 and Spearman was "controlling" in the third district at
that time. The defendant argues that, because the rule of Spearman
constituted the law in the third district at the time he committed his
offenses, it would be violative of the prohibition on ex post facto laws to
apply the "change" in the law wrought by Martin and Hicks retroactively to
him.
Article I of the United States Constitution provides that neither
Congress nor any state shall pass any "ex post facto Law." See U.S. Const.,
art. I, 9, cl. 3; art. I, 10, cl. 1. Encompassed within this prohibited
class of laws is, inter alia, a law that " `changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime, when
committed.' " (Emphasis omitted.)
Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38, 110 S. Ct. 2715, 2719 (1990), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). The purpose of this constitutional prohibition is to
ensure that legislative enactments "give fair warning of their effect and
permit individuals to rely on their meaning until explicitly changed." Weaver
v. Graham, 450 U.S. 24, 28-29, 67 L. Ed. 2d 17, 23, 101 S. Ct. 960, 964
(1981).
While the language of the ex post facto clause speaks to legislative
enactments and does not on its face apply to judicial action, it is has been
held that the prohibition applies to judicial interpretations of statutory
law. Marks v. United States, 430 U.S. 188, 191-92, 51 L. Ed. 2d 260, 265, 97 S. Ct. 990, 992-93 (1977); Bouie v. Columbia, 378 U.S. 347, 352-54, 12 L. Ed. 2d 894, 899-90, 84 S. Ct. 1697, 1701-03 (1964); People v. Ramey, 152 Ill. 2d 41, 63 (1992). In Bouie, the Supreme Court noted that "an unforeseeable
judicial enlargement of a criminal statute, applied retroactively, operates
precisely like an ex post facto law, such as Art. I, 10, of the Constitution
forbids." Bouie, 378 U.S. at 353, 12 L. Ed. 2d at 899, 84 S. Ct. at 1702. The
Bouie Court held that, if a state legislature is barred from passing an ex
post facto law, then a state supreme court must be barred by the due process
clause from achieving the same result by judicial construction. Accordingly,
under Bouie, if a judicial construction of a criminal statute is
" `unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue,' " it must not be applied
retroactively. Bouie, 378 U.S. at 354, 12 L. Ed. 2d at 900, 84 S. Ct. at
1703, quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960);
see also Ramey, 152 Ill. 2d at 64.
We find that applying section 5--5--3.2(b)(1) as interpreted in Hicks
and Martin to the defendant does not violate due process. Bouie prohibited
the retroactive application of a judicial construction of a criminal statute
only where it effects an unforeseeable change in the law. The interpretation
given to section 5--5--3.2(b)(1) in Hicks and Martin did not constitute an
unforeseeable change in the law under Bouie.
Section 5--5--3.2(b)(1) was enacted prior to the defendant's conduct in
these cases. Our decision in Hicks did not enlarge the meaning of the
statute, but merely interpreted the plain meaning of the statute's
unambiguous language to reach the conclusion that it encompassed felonies
that were enhanced from misdemeanors by prior criminal conduct. A judicial
decision which merely interprets a criminal statute in accordance with its
plain language does not operate as an ex post facto law. People v. Coleman,
168 Ill. 2d 509, 551 (1995); People v. Dugan, 109 Ill. 2d 8, 16 (1985). This
is true even where the statute had not previously been interpreted in that
manner. Coleman, 168 Ill. 2d at 550-51; Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 295 (1988); Dugan, 109 Ill. 2d at 16. Thus, under the plain
language of section 5--5--3.2(b)(1), the defendant was afforded fair warning
at the time of his offenses that he could be subject to extended-term
sentences for those crimes.
Neither did Hicks, or Martin, constitute an unforeseeable change in the
law with reference to the judicial pronouncements on this issue at the time
of the defendant's offenses. In June and September of 1992, when the
defendant committed these crimes, this court had not yet considered the issue
of whether section 5--5--3.2(b)(1) applied to felonies that were enhanced
from misdemeanors. Thus, Hicks did not overrule any prior precedent of this
court in reaching its holding. The appellate court pronouncements on the
issue were inconsistent. Spearman, upon which the defendant relies, held that
section 5--5--3.2(b)(1) did not apply to felonies that were enhanced from
misdemeanors. Some other appellate court decisions had interpreted section 5-
-5--3.2(b)(1) in the same manner as Spearman. See, e.g., People v. Hurd, 190
Ill. App. 3d 800 (1989); People v. Nally, 134 Ill. App. 3d 865 (1985). As of
June and September of 1992, however, other appellate court decisions had
rejected Spearman. See, e.g., People v. Crosby, 204 Ill. App. 3d 548 (1990);
People v. Roby, 172 Ill. App. 3d 1060 (1988). For example, in the 1988
decision in Roby, the appellate court expressly disagreed with Spearman's
interpretation of section 5--5--3.2(b)(1) and held that an extended-term
sentence was properly imposed for a misdemeanor DWLR conviction that had been
enhanced to a felony because of a prior conviction. Roby, 172 Ill. App. 3d at
1063-66.
Thus, at the time of the defendant's criminal conduct, the decisions of
the appellate court were conflicting, this court had not spoken on the issue,
and the plain language of the statute encompassed the defendant's crimes.
Under these circumstances, we do not find that our holding in Hicks, or the
appellate court's holding in Martin, represented a construction of section 5-
-5--3.2(b)(1) that was " `unexpected and indefensible by reference to the law
which had been expressed prior to the conduct at issue.' " Bouie, 378 U.S. at
354, 12 L. Ed. 2d at 900, 84 S. Ct. at 1703, quoting J. Hall, General
Principles of Criminal Law 61 (2d ed. 1960). We agree with the view espoused
by the Seventh Circuit Court of Appeals, which stated, in rejecting a similar
argument:
"That courts have rendered decisions later deemed erroneous by
higher authority does not entitle criminal defendants to the
benefit of those mistakes. [Citation.] Bouie applies only to
unpredictable shifts in the law, not to the resolution of
uncertainty that marks any evolving legal system." United States v.
Burnom, 27 F.3d 283, 284-85 (7th Cir. 1994).
Accordingly, we find that Bouie does not apply here to prohibit the
application of Hicks or Martin to the defendant. The defendant was afforded
fair warning, at the time of his crimes, that the extended-term sentencing
provision could apply if he should be convicted. Based upon the foregoing,
there is no constitutional prohibition against applying section 5--5--
3.2(b)(1) as interpreted in Hicks and Martin to the defendant. See People v.
Crete, 113 Ill. 2d 156, 159-63 (1986); Dugan, 109 Ill. 2d at 16; City of
Chicago v. Hertz Commercial Leasing Corp., 71 Ill. 2d 333, 347-48 (1978);
Burnom, 27 F.3d at 284-85; Dale v. Haeberlin, 878 F.2d 930, 932 (6th Cir.
1989).
This same conclusion was reached in Crete, where this court sought to
interpret section 5--8--1(c) of our Unified Code of Corrections to determine
whether that statute's time period for the reduction or modification of a
sentence was permissive or mandatory. The defendant argued that the language
was permissive and the statute should be interpreted to allow for a hearing
on his motion to reduce his sentence. The Crete court noted that this court
had not previously addressed the issue and that the opinions of the appellate
court on the issue were conflicting. This court went on to conclude that the
clear language of the statute required that it be interpreted as mandatory,
rather than permissive. This interpretation defeated the defendant's
position, and the defendant argued that this interpretation should not be
applied retroactively to his case. This court rejected that argument. Even
though prior appellate court decisions had interpreted the statute in the
manner urged by the defendant, this court found that its decision did not
constitute a change in the law which warranted a prospective-only
application. Crete, 113 Ill. 2d at 163.
The defendant continues to urge, however, that with regard to cases,
such as his, arising within the third district of the appellate court, the
holdings of Hicks and Martin did constitute an unforeseeable change in the
law because Spearman was not contradicted by any other decision of that
district. The defendant's contention must be rejected. There is only one
Illinois Appellate Court (People v. Layhew, 139 Ill. 2d 476, 489 (1990)), and
that court's pronouncements on the present issue were unsettled at the time
of the defendant's crimes. Since our appellate court expressed conflicting
views on the issue, the defendant had no basis for allegedly relying upon
only one of those conflicting views and ignoring the other view. The fact
that the defendant's cases arose within the third district is not
controlling, because the only inquiry presented here is whether the defendant
had fair warning, at the time of his crimes, that section 5--5--3.2(b)(1)
could be interpreted to apply to his crimes. The plain meaning of the
statute, and the fact that some appellate court decisions had interpreted the
statute to cover such crimes, provided the defendant with the requisite fair
warning.
Were we to accept the defendant's argument, our decision in Hicks would
apply retroactively only to defendants whose cases arose in some districts,
and not to those whose cases arose in other districts. The defendant does not
dispute that had his cases arisen in, for instance, the fourth district of
the appellate court, there would be no due process impediment to the
application of Hicks. The defendant thus, in effect, asks this court to
unfairly discriminate between similarly situated defendants depending upon
the district in which their case arose. See People v. Harris, 123 Ill. 2d 113, 128 (1988) (refusing to apply an otherwise prospective-only supreme
court decision retroactively to benefit defendants in only one appellate
district because of prior precedent within that district). We reject the
defendant's claim that the circumstance of his cases having arisen within the
third district allows him to avoid the application of this court's otherwise-
applicable precedent. See People v. Phillips, 219 Ill. App. 3d 877 (1991)
(second district of the appellate court held that supreme court's
interpretation of a criminal statute, announced during the pendency of the
defendant's appeal, applied to the defendant even though the second district
had previously adhered to the contrary interpretation).
As a final matter, the defendant notes that in Martin, the decision that
overruled Spearman, the third district of the appellate court stated that it
would not apply its decision retroactively because it overruled prior
precedent. Martin, 240 Ill. App. 3d at 265. In the present case, both parties
ask this court to consider whether the Illinois Appellate Court possesses the
authority to limit the application of its decision to prospective application
only. We find, however, that we need not decide in this case whether, or
under what circumstances, our appellate court has the authority to limit the
retroactive application of a decision. Regardless of whether an appellate
court ever has the authority to limit the retroactive application of a
decision, for the reasons stated in this opinion we find that the Martin
court erred in limiting its decision to prospective application only.
In sum, we find that neither our decision in Hicks nor the appellate
court's decision in Martin constituted the sort of unpredictable shift in the
law with which Bouie was concerned, but are more appropriately described as
the "resolution of uncertainty that marks any evolving legal system." Burnom,
27 F.3d at 284-85. Application of section 5--5--3.2(b)(1), as interpreted in
Hicks and Martin, to the defendant is therefore not prohibited.
CONCLUSION
For the foregoing reasons, we hold that the defendant was properly found
subject to extended-term sentences in these cases. The judgment of the
appellate court in each case is therefore reversed, and the judgment of the
circuit court in each case is affirmed.
No. 79056--Appellate court judgment reversed;
circuit court judgment affirmed.
No. 79057--Appellate court judgment reversed;
circuit court judgment affirmed.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. HILARION GRANADOS,
Appellee.
Opinion filed May 23, 1996.
CHIEF JUSTICE BILANDIC delivered the opinion of the court:
The issue in these consolidated appeals is whether the circuit court was
authorized to impose extended-term sentences on the defendant, Hilarion
Granados, for each of his four felony convictions. In each of two cases, the
defendant pled guilty to one count of driving under the influence of alcohol
and one count of driving while license revoked. The circuit court of
Whiteside County found the defendant subject to an extended-term sentence of
six years' imprisonment for each conviction. The defendant appealed in both
cases. The appellate court held that the defendant was not subject to
extended-term sentences and reduced the defendant's sentences accordingly.
Nos. 3--93--0198, 3--93--0884 (unpublished orders under Supreme Court Rule
23). We accepted the State's petition for leave to appeal in each case (155
Ill. 2d R. 315), and consolidated them. We now reverse the judgment of the
appellate court and affirm the sentences imposed upon the defendant by the
circuit court in both cases.
FACTS
In case no. 79057, the defendant was charged by information on June 15,
1992, with one count of driving under the influence of alcohol (DUI) and one
count of driving while license revoked (DWLR). Each offense was alleged to
have occurred on June 12, 1992. The DUI offense was charged as a Class 4
felony based on the defendant's prior DUI convictions. The DWLR offense was
also charged as a Class 4 felony based on the defendant's prior DWLR
convictions. On September 1, 1992, the defendant pled guilty to each count in
open court and was admonished that he could receive extended-term sentences
of three to six years' imprisonment. On October 16, 1992, the defendant was
sentenced on each count to an extended term of six years' imprisonment.
The defendant filed a pro se notice of appeal to the appellate court on
January 20, 1993. The appellate court dismissed that appeal. Thereafter, the
defendant filed a petition for post-conviction relief in which he charged
that his trial counsel was ineffective for failing to "file an appeal" for
him. The trial court denied the petition. The defendant appealed to the
appellate court, third district, arguing that his counsel was ineffective
because he was not subject to extended-term sentences. The appellate court
agreed and reduced the defendant's sentences to the maximum nonextended term
of three years' imprisonment. No. 3--93--0884 (unpublished order under
Supreme Court Rule 23).
In case no. 79056, the defendant was charged by information on September
25, 1992, with one count of DUI and one count of DWLR, each offense alleged
to have occurred on September 17, 1992. Each offense was charged as a Class
4 felony based upon the defendant's prior convictions. On November 25, 1992,
the defendant pled guilty to each count in open court, and was admonished
that he could receive extended-term sentences of three to six years'
imprisonment. On January 15, 1993, the defendant was sentenced on each count
to an extended term of six years' imprisonment. These sentences were ordered
to run consecutively to those imposed in case no. 79057.
The defendant filed motions to withdraw his guilty pleas and for a
reduction of his sentences. The trial court denied these motions. The
defendant appealed to the appellate court, third district, on the ground that
he was not subject to extended-term sentences. The appellate court agreed and
reduced the defendant's sentences to the maximum nonextended term of three
years' imprisonment. No. 3--93--0198 (unpublished order under Supreme Court
Rule 23).
The third district of the appellate court applied the same reasoning in
reducing the defendant's sentences in each appeal. The appellate court
determined that the defendant's sentencing was governed by the third
district's decision in People v. Spearman, 108 Ill. App. 3d 237 (1982),
because the defendant's crimes were committed within the third district of
the appellate court in June and September of 1992, and Spearman was the
controlling precedent in that district at that time. Spearman held that the
extended-term sentencing statute was not applicable to felonies that had been
enhanced from misdemeanors by the defendant's prior convictions. The
appellate court noted that it had expressly overruled Spearman in People v.
Martin, 240 Ill. App. 3d 260 (1992), a decision announced in December of
1992. The opinion in Martin, however, stated that it was limited to
prospective application only because it had overruled the third district's
prior precedent, Spearman. Therefore, the appellate court found that Martin
did not apply to the defendant's sentencing because the defendant's crimes
occurred before Martin was announced. The appellate court further found that
to apply Martin retroactively to the defendant would violate due process as
the equivalent of an ex post facto law. The appellate court noted that this
court's recent decision in People v. Hicks, 164 Ill. 2d 218 (1995), had
decided that the extended-term statute applied to felonies enhanced from
misdemeanors. Hicks was therefore in accordance with Martin and contrary to
Spearman. The appellate court determined, however, that Hicks could not be
retroactively applied to the defendant.
ANALYSIS
As noted, in each of these cases, the defendant pled guilty to the
offenses of driving under the influence of alcohol (625 ILCS 5/11--501(a),
(d)(1) (West 1992)) and driving while license revoked (625 ILCS 5/6--303
(West 1992)). Each of these offenses is classified as a Class A misdemeanor.
625 ILCS 5/11--501(c), 6--303(a) (West 1992). The Illinois Vehicle Code
provides, however, that DUI is enhanced to a Class 4 felony when the
defendant has previously been convicted of that same offense two or more
times. 625 ILCS 5/11--501(d)(1) (West 1992). Likewise, DWLR is treated as a
Class 4 felony when the defendant has previously been convicted of that
offense and the original revocation or suspension was the result of a
violation of the DUI statute. 625 ILCS 5/6--303(d) (West 1992). At the time
the defendant committed his offenses, he had at least three prior DUI
convictions and eight prior DWLR convictions. There is no dispute that each
of the defendant's offenses in the instant cases was properly charged as a
Class 4 felony based upon his prior convictions.
The defendant was found subject to an extended-term sentence for each of
the instant convictions pursuant to section 5--5--3.2(b)(1) of our Unified
Code of Corrections. 730 ILCS 5/5--5--3.2(b)(1) (West 1992). Pursuant to that
section, an extended-term sentence may be imposed when a defendant:
"is convicted of any felony, after having been previously
convicted *** of the same or similar class felony or greater class
felony, when such conviction has occurred within 10 years after the
previous conviction, excluding time spent in custody, and such
charges are separately brought and tried and arise out of different
series of acts." 730 ILCS 5/5--5--3.2(b)(1) (West 1992).
The extended-term sentence permissible for a Class 4 felony is a term of
imprisonment not less than three years and not more than six years. 730 ILCS
5/5--8--2(a)(6) (West 1992).
The defendant does not dispute that his past criminal convictions
satisfied the requirements of section 5--5--3.2(b)(1). Nevertheless, the
defendant contends he was not subject to extended-term sentencing under that
provision. The defendant's sole basis for this contention is that his instant
Class 4 felony convictions for DUI and DWLR do not amount to felonies within
the meaning of that section. The defendant argues that the phrase "any
felony" in section 5--5--3.2(b)(1) does not encompass a misdemeanor that has
been enhanced to a felony by reason of prior convictions.
The defendant's contention was recently rejected by this court in People
v. Hicks, 164 Ill. 2d 218 (1995). In Hicks, this court was asked to resolve
a conflict among the decisions of our appellate court with respect to whether
a trial court may impose an extended-term sentence for a felony conviction
where that felony was enhanced from a misdemeanor because of the defendant's
past criminal convictions. This court in Hicks rejected the defendant's
contention that the phrase "any felony" in the extended-term sentencing
provision was ambiguous and should be construed to exclude such enhanced
misdemeanors. Rather, we found, the plain language of the provision
explicitly states that it applies to "any felony" and makes no exception for
misdemeanors that have been enhanced to felonies in accordance with the
legislature's direction. The words "any felony," we concluded, are broad in
scope and apply to a misdemeanor that has been enhanced to a felony by reason
of prior criminal convictions. Hicks, 164 Ill. 2d at 223. This court's
holding in Hicks thus defeats the defendant's argument that the phrase "any
felony" in section 5--5--3.2(b)(1) does not encompass his felony convictions
in the instant cases.
The defendant contends that Hicks should not apply to him because his
offenses occurred before Hicks was announced by this court. As a general
rule, however, this court's decisions apply to all cases that are pending
when the decision is announced, unless this court directs otherwise. See
Lannom v. Kosco, 158 Ill. 2d 535, 538 (1994); People v. Stack, 112 Ill. 2d 301, 309 (1986); People v. Phillips, 219 Ill. App. 3d 877, 879 (1991). But
cf. Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708
(1987); Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060
(1989) (discussing rules of retroactivity where a judicial decision announces
a new constitutional rule of criminal procedure that is favorable to the
defendant). We did not direct that our decision in Hicks be applied
prospectively only. To the contrary, we applied our interpretation of section
5--5--3.2(b)(1) to uphold the extended-term sentence imposed on Hicks, who
committed his crime in February of 1992. The defendant's cases were pending
in the appellate court at the time this court announced its decision in
Hicks. Hicks therefore applies and defeats the defendant's claim.
The defendant argues, however, that the application of Hicks to his
cases would violate the prohibition on ex post facto laws because Hicks
constituted a change from the law which had been expressed at the time of his
crimes. The defendant contends that the controlling law at the time of his
offenses was the rule stated in a decision of the third district of our
appellate court, People v. Spearman, 108 Ill. App. 3d 237 (1982). In
Spearman, the defendant had been sentenced to an extended term of five years'
imprisonment for stealing less than $15 worth of meat from a supermarket. The
appellate court in that case held, citing "the interest of lenity," that an
extended-term sentence was improperly imposed because section 5--5--3.2(b)(1)
did not authorize the imposition of an extended-term sentence for a
misdemeanor that has been enhanced to a felony because of prior convictions.
Spearman, 108 Ill. App. 3d at 240.
The defendant acknowledges that Spearman was expressly overruled by the
third district of the appellate court in a decision filed in December of
1992, People v. Martin, 240 Ill. App. 3d 260 (1992). Martin interpreted
section 5--5--3.2(b)(1) in the same manner this court did in Hicks. The
defendant also acknowledges that Spearman is no longer valid after this
court's decision in Hicks. The defendant nonetheless contends that his
sentencing in the instant cases must be governed by Spearman because his
offenses occurred within the third district of the appellate court in June
and September of 1992 and Spearman was "controlling" in the third district at
that time. The defendant argues that, because the rule of Spearman
constituted the law in the third district at the time he committed his
offenses, it would be violative of the prohibition on ex post facto laws to
apply the "change" in the law wrought by Martin and Hicks retroactively to
him.
Article I of the United States Constitution provides that neither
Congress nor any state shall pass any "ex post facto Law." See U.S. Const.,
art. I, 9, cl. 3; art. I, 10, cl. 1. Encompassed within this prohibited
class of laws is, inter alia, a law that " `changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime, when
committed.' " (Emphasis omitted.)
Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38, 110 S. Ct. 2715, 2719 (1990), quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648, 650 (1798). The purpose of this constitutional prohibition is to
ensure that legislative enactments "give fair warning of their effect and
permit individuals to rely on their meaning until explicitly changed." Weaver
v. Graham, 450 U.S. 24, 28-29, 67 L. Ed. 2d 17, 23, 101 S. Ct. 960, 964
(1981).
While the language of the ex post facto clause speaks to legislative
enactments and does not on its face apply to judicial action, it is has been
held that the prohibition applies to judicial interpretations of statutory
law. Marks v. United States, 430 U.S. 188, 191-92, 51 L. Ed. 2d 260, 265, 97 S. Ct. 990, 992-93 (1977); Bouie v. Columbia, 378 U.S. 347, 352-54, 12 L. Ed. 2d 894, 899-90, 84 S. Ct. 1697, 1701-03 (1964); People v. Ramey, 152 Ill. 2d 41, 63 (1992). In Bouie, the Supreme Court noted that "an unforeseeable
judicial enlargement of a criminal statute, applied retroactively, operates
precisely like an ex post facto law, such as Art. I, 10, of the Constitution
forbids." Bouie, 378 U.S. at 353, 12 L. Ed. 2d at 899, 84 S. Ct. at 1702. The
Bouie Court held that, if a state legislature is barred from passing an ex
post facto law, then a state supreme court must be barred by the due process
clause from achieving the same result by judicial construction. Accordingly,
under Bouie, if a judicial construction of a criminal statute is
" `unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue,' " it must not be applied
retroactively. Bouie, 378 U.S. at 354, 12 L. Ed. 2d at 900, 84 S. Ct. at
1703, quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960);
see also Ramey, 152 Ill. 2d at 64.
We find that applying section 5--5--3.2(b)(1) as interpreted in Hicks
and Martin to the defendant does not violate due process. Bouie prohibited
the retroactive application of a judicial construction of a criminal statute
only where it effects an unforeseeable change in the law. The interpretation
given to section 5--5--3.2(b)(1) in Hicks and Martin did not constitute an
unforeseeable change in the law under Bouie.
Section 5--5--3.2(b)(1) was enacted prior to the defendant's conduct in
these cases. Our decision in Hicks did not enlarge the meaning of the
statute, but merely interpreted the plain meaning of the statute's
unambiguous language to reach the conclusion that it encompassed felonies
that were enhanced from misdemeanors by prior criminal conduct. A judicial
decision which merely interprets a criminal statute in accordance with its
plain language does not operate as an ex post facto law. People v. Coleman,
168 Ill. 2d 509, 551 (1995); People v. Dugan, 109 Ill. 2d 8, 16 (1985). This
is true even where the statute had not previously been interpreted in that
manner. Coleman, 168 Ill. 2d at 550-51; Rothe v. Maloney Cadillac, Inc., 119 Ill. 2d 288, 295 (1988); Dugan, 109 Ill. 2d at 16. Thus, under the plain
language of section 5--5--3.2(b)(1), the defendant was afforded fair warning
at the time of his offenses that he could be subject to extended-term
sentences for those crimes.
Neither did Hicks, or Martin, constitute an unforeseeable change in the
law with reference to the judicial pronouncements on this issue at the time
of the defendant's offenses. In June and September of 1992, when the
defendant committed these crimes, this court had not yet considered the issue
of whether section 5--5--3.2(b)(1) applied to felonies that were enhanced
from misdemeanors. Thus, Hicks did not overrule any prior precedent of this
court in reaching its holding. The appellate court pronouncements on the
issue were inconsistent. Spearman, upon which the defendant relies, held that
section 5--5--3.2(b)(1) did not apply to felonies that were enhanced from
misdemeanors. Some other appellate court decisions had interpreted section 5-
-5--3.2(b)(1) in the same manner as Spearman. See, e.g., People v. Hurd, 190
Ill. App. 3d 800 (1989); People v. Nally, 134 Ill. App. 3d 865 (1985). As of
June and September of 1992, however, other appellate court decisions had
rejected Spearman. See, e.g., People v. Crosby, 204 Ill. App. 3d 548 (1990);
People v. Roby, 172 Ill. App. 3d 1060 (1988). For example, in the 1988
decision in Roby, the appellate court expressly disagreed with Spearman's
interpretation of section 5--5--3.2(b)(1) and held that an extended-term
sentence was properly imposed for a misdemeanor DWLR conviction that had been
enhanced to a felony because of a prior conviction. Roby, 172 Ill. App. 3d at
1063-66.
Thus, at the time of the defendant's criminal conduct, the decisions of
the appellate court were conflicting, this court had not spoken on the issue,
and the plain language of the statute encompassed the defendant's crimes.
Under these circumstances, we do not find that our holding in Hicks, or the
appellate court's holding in Martin, represented a construction of section 5-
-5--3.2(b)(1) that was " `unexpected and indefensible by reference to the law
which had been expressed prior to the conduct at issue.' " Bouie, 378 U.S. at
354, 12 L. Ed. 2d at 900, 84 S. Ct. at 1703, quoting J. Hall, General
Principles of Criminal Law 61 (2d ed. 1960). We agree with the view espoused
by the Seventh Circuit Court of Appeals, which stated, in rejecting a similar
argument:
"That courts have rendered decisions later deemed erroneous by
higher authority does not entitle criminal defendants to the
benefit of those mistakes. [Citation.] Bouie applies only to
unpredictable shifts in the law, not to the resolution of
uncertainty that marks any evolving legal system." United States v.
Burnom, 27 F.3d 283, 284-85 (7th Cir. 1994).
Accordingly, we find that Bouie does not apply here to prohibit the
application of Hicks or Martin to the defendant. The defendant was afforded
fair warning, at the time of his crimes, that the extended-term sentencing
provision could apply if he should be convicted. Based upon the foregoing,
there is no constitutional prohibition against applying section 5--5--
3.2(b)(1) as interpreted in Hicks and Martin to the defendant. See People v.
Crete, 113 Ill. 2d 156, 159-63 (1986); Dugan, 109 Ill. 2d at 16; City of
Chicago v. Hertz Commercial Leasing Corp., 71 Ill. 2d 333, 347-48 (1978);
Burnom, 27 F.3d at 284-85; Dale v. Haeberlin, 878 F.2d 930, 932 (6th Cir.
1989).
This same conclusion was reached in Crete, where this court sought to
interpret section 5--8--1(c) of our Unified Code of Corrections to determine
whether that statute's time period for the reduction or modification of a
sentence was permissive or mandatory. The defendant argued that the language
was permissive and the statute should be interpreted to allow for a hearing
on his motion to reduce his sentence. The Crete court noted that this court
had not previously addressed the issue and that the opinions of the appellate
court on the issue were conflicting. This court went on to conclude that the
clear language of the statute required that it be interpreted as mandatory,
rather than permissive. This interpretation defeated the defendant's
position, and the defendant argued that this interpretation should not be
applied retroactively to his case. This court rejected that argument. Even
though prior appellate court decisions had interpreted the statute in the
manner urged by the defendant, this court found that its decision did not
constitute a change in the law which warranted a prospective-only
application. Crete, 113 Ill. 2d at 163.
The defendant continues to urge, however, that with regard to cases,
such as his, arising within the third district of the appellate court, the
holdings of Hicks and Martin did constitute an unforeseeable change in the
law because Spearman was not contradicted by any other decision of that
district. The defendant's contention must be rejected. There is only one
Illinois Appellate Court (People v. Layhew, 139 Ill. 2d 476, 489 (1990)), and
that court's pronouncements on the present issue were unsettled at the time
of the defendant's crimes. Since our appellate court expressed conflicting
views on the issue, the defendant had no basis for allegedly relying upon
only one of those conflicting views and ignoring the other view. The fact
that the defendant's cases arose within the third district is not
controlling, because the only inquiry presented here is whether the defendant
had fair warning, at the time of his crimes, that section 5--5--3.2(b)(1)
could be interpreted to apply to his crimes. The plain meaning of the
statute, and the fact that some appellate court decisions had interpreted the
statute to cover such crimes, provided the defendant with the requisite fair
warning.
Were we to accept the defendant's argument, our decision in Hicks would
apply retroactively only to defendants whose cases arose in some districts,
and not to those whose cases arose in other districts. The defendant does not
dispute that had his cases arisen in, for instance, the fourth district of
the appellate court, there would be no due process impediment to the
application of Hicks. The defendant thus, in effect, asks this court to
unfairly discriminate between similarly situated defendants depending upon
the district in which their case arose. See People v. Harris, 123 Ill. 2d 113, 128 (1988) (refusing to apply an otherwise prospective-only supreme
court decision retroactively to benefit defendants in only one appellate
district because of prior precedent within that district). We reject the
defendant's claim that the circumstance of his cases having arisen within the
third district allows him to avoid the application of this court's otherwise-
applicable precedent. See People v. Phillips, 219 Ill. App. 3d 877 (1991)
(second district of the appellate court held that supreme court's
interpretation of a criminal statute, announced during the pendency of the
defendant's appeal, applied to the defendant even though the second district
had previously adhered to the contrary interpretation).
As a final matter, the defendant notes that in Martin, the decision that
overruled Spearman, the third district of the appellate court stated that it
would not apply its decision retroactively because it overruled prior
precedent. Martin, 240 Ill. App. 3d at 265. In the present case, both parties
ask this court to consider whether the Illinois Appellate Court possesses the
authority to limit the application of its decision to prospective application
only. We find, however, that we need not decide in this case whether, or
under what circumstances, our appellate court has the authority to limit the
retroactive application of a decision. Regardless of whether an appellate
court ever has the authority to limit the retroactive application of a
decision, for the reasons stated in this opinion we find that the Martin
court erred in limiting its decision to prospective application only.
In sum, we find that neither our decision in Hicks nor the appellate
court's decision in Martin constituted the sort of unpredictable shift in the
law with which Bouie was concerned, but are more appropriately described as
the "resolution of uncertainty that marks any evolving legal system." Burnom,
27 F.3d at 284-85. Application of section 5--5--3.2(b)(1), as interpreted in
Hicks and Martin, to the defendant is therefore not prohibited.
CONCLUSION
For the foregoing reasons, we hold that the defendant was properly found
subject to extended-term sentences in these cases. The judgment of the
appellate court in each case is therefore reversed, and the judgment of the
circuit court in each case is affirmed.
No. 79056--Appellate court judgment reversed;
circuit court judgment affirmed.
No. 79057--Appellate court judgment reversed;
circuit court judgment affirmed.
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