People v. Reed
Annotate this Case
People v. Reed, Nos. 81422, 81683 cons. (9/25/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 81422, 81683 cons.--Agenda 10--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DERRICK REED, Appellant.--THE PEOPLE OF THE STATE OF
ILLINOIS, Appellee, v. DAVID TURNER, Appellant.
Opinion filed September 25, 1997.
JUSTICE NICKELS delivered the opinion of the court:
The sole issue presented in these consolidated
appeals is whether the 1993 amendment to section 5--8--
1(c) of the Unified Code of Corrections (730 ILCS 5/5--8-
-1(c) (West 1994)) requires that a defendant file a
written post-sentencing motion in the trial court to
preserve sentencing issues for appellate review. We
conclude that it does.
BACKGROUND
Defendant Reed
After a bench trial in the circuit court of Cook
County, Derrick Reed was convicted of reckless homicide
and aggravated driving under the influence of alcohol.
Reed was sentenced to seven years' imprisonment for the
reckless homicide offense to be served concurrently with
a four-year sentence for driving under the influence.
Reed did not file a post-sentencing motion in the trial
court, but challenged his sentence as excessive on
appeal. 282 Ill. App. 3d 278. The appellate court
concluded that the 1993 amendment to section 5--8--1(c)
requires a written post-sentencing motion be made in the
trial court in order to preserve sentencing issues for
appeal. The court reasoned that the plain language of the
amendment made a written post-sentencing motion the
functional equivalent of a post-trial motion. Thus, the
appellate court found defendant's sentencing challenge
waived and further found no plain error. We granted
Reed's petition for leave to appeal. 155 Ill. 2d R. 315.
Defendant Turner
After a bench trial in the circuit court of Cook
County, David Turner was convicted of first degree murder
and aggravated kidnapping. Turner was sentenced to
consecutive prison terms of life in prison for the murder
and 30 years for the aggravated kidnapping. Defendant did
not file a motion in the trial court challenging his
sentence. On appeal, Turner argued that the trial court
considered factors during sentencing that were not
supported by the record. 282 Ill. App. 3d 770. Relying on
People v. McCleary, 278 Ill App. 3d 498, 501 (1996), the
appellate court concluded that the amendment to section
5--8--1(c) requires sentencing issues be raised in a
written post-sentencing motion. Thus, the appellate court
found Turner's sentencing issues waived and further found
no plain error. We granted Turner's petition for leave to
appeal (155 Ill. 2d R. 315) and consolidated his appeal
with Reed's appeal.
ANALYSIS
In People v. Lewis, 158 Ill. 2d 386 (1994), this
court analyzed the preamendment version of section 5--8--
1(c). The statute at issue in Lewis provided in part:
"A motion to reduce a sentence may be
made, or the court may reduce a sentence
without motion, within 30 days after the
sentence is imposed. However, the court may
not increase a sentence once it is imposed."
(Emphasis added.) Ill. Rev. Stat. 1989, ch.
38, par. 1005--8--1(c).
Applying settled principles of statutory
construction, this court determined that the statutory
language did not show a legislative intent to make post-
sentencing motions a prerequisite to appealing sentencing
issues. The conclusion reached in Lewis rested primarily
on the permissive language contained in the first
sentence of the statute. Lewis, 158 Ill. 2d at 390. This
court specifically noted that this language was very
different from the mandatory language found to require a
written post-trial motion to preserve trial issues for
appeal. Lewis, 158 Ill. 2d at 390. In addition, this
court also noted that no other language in section 5--8--
1(c) suggested a legislative intent to require a post-
sentencing motion to preserve sentencing issues for
appellate review. Lewis, 158 Ill. 2d at 390.
In Lewis, this court did not consider the 1993
amendment to section 5--8--1(c) at issue here, because
the amendment applied only to sentences imposed on or
after August 11, 1993. Both of the present defendants
were sentenced after the effective date of the amendment
to section 5--8--1(c). The amendment adds one sentence:
"A motion to reduce a sentence may be
made, or the court may reduce a sentence
without motion, within 30 days after the
sentence is imposed. A defendant's challenge
to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made
by a written motion filed within 30 days
following the imposition of sentence. However,
the court may not increase a sentence once it
is imposed." (Emphasis added.) 730 ILCS 5/5--
8--1(c) (West 1994) (emphasized language added
by Pub. Act 88--311, eff. August 11, 1993).
The defendants note that the amendment leaves intact
the first sentence of section 5--8--1(c). Defendants
argue that the conclusion reached in Lewis was based
primarily on the permissive language contained in the
first sentence of the statute. Therefore, defendants
contend the conclusion reached in Lewis remains sound.
Defendants further argue that the amended portion of the
statute merely provides for the procedure to be followed
if a defendant should choose to file a motion challenging
his sentence in the trial court, but it does not require
such a motion be filed to preserve sentencing issues for
appeal. See People v. Cook, 279 Ill. App. 3d 718 (1995).
The State responds that the amendment demonstrates a
clear legislative intent to require sentencing issues be
raised by motion in the trial court as a prerequisite to
appeal.
In determining the intent of the legislature
concerning the amendment to section 5--8--1(c), we apply
the same familiar rules of statutory construction applied
in Lewis. In examining a statute, it must be read as a
whole and all relevant parts should be considered. Lewis,
158 Ill. 2d at 389. Whether a statutory provision is
mandatory or merely directory depends upon the intent of
its drafters. People v. Youngbey, 82 Ill. 2d 556, 562
(1980). An important aid in determining legislative
intent is the nature of the auxiliary verb used in the
statute. Youngbey, 82 Ill. 2d at 562. Legislative use of
the word "may" is generally regarded as indicating a
permissive or directory reading, whereas use of the word
"shall" is generally considered to express a mandatory
reading. Youngbey, 82 Ill. 2d at 562.
Applying these principles, we conclude that the
legislative purpose behind section 5--8--1(c) was to
require sentencing issues be raised in the trial court in
order to preserve those issues for appellate review. In
Lewis, we noted that the precatory language at issue in
the preamendment version of section 5--8--1(c) was very
different from the mandatory statutory language found in
People v. Enoch, 122 Ill. 2d 176 (1988), to require a
written post-trial motion to preserve trial issues for
appeal. In contrast, the new mandatory language presently
contained in section 5--8--1(c) is nearly identical in
substance to the statutory language at issue in Enoch.
Compare 725 ILCS 5/116--1(b) (West 1994) ("A written
motion for a new trial shall be filed by the defendant
within 30 days following the entry of a finding or the
return of a verdict") with 730 ILCS 5/5--8--1(c) (West
1994) ("A defendant's challenge to the correctness of a
sentence or to any aspect of the sentencing hearing shall
be made by a written motion filed within 30 days
following the imposition of sentence").
In addition, the policy considerations supporting
the requirement of a written post-trial motion to
preserve trial error are equally applicable in the
context of sentencing. Requiring a written post-
sentencing motion will allow the trial court the
opportunity to review a defendant's contention of
sentencing error and save the delay and expense inherent
in appeal if they are meritorious. Such a motion also
focuses the attention of the trial court upon a
defendant's alleged errors and gives the appellate court
the benefit of the trial court's reasoned judgment on
those issues. We therefore agree with the appellate court
that the plain language now contained in section 5--8--
1(c) shows a clear legislative intent to make a post-
sentencing motion the functional equivalent of a post-
trial motion for purposes of preserving issues for
appeal.
We reject defendants' contention that the conclusion
reached in Lewis remains sound because it was based on
the permissive language contained in the first sentence
of section 5--8--1(c), which was unchanged by the
amendment. As stated in Lewis, the statute must be read
as a whole. Lewis, 158 Ill. 2d at 389-90. When read as a
whole, the first sentence provides that the trial court
"may" reduce a sentence or the defendant "may" file a
motion to reduce a sentence, but obviously neither is
required to do so. The second sentence now provides that
a defendant who decides to challenge his sentence "shall"
file a written motion in the trial court. Even without
changing the language in that first sentence, the
legislature changed the result reached in Lewis.
We also reject the defendants' contention that the
additional sentence in section 5--8--1(c) was intended
merely to describe the manner in which a defendant who
chooses to challenge his sentence in the trial court may
do so. The language in the second sentence of section 5--
8--1(c) does not limit the mandatory filing of a post-
sentencing motion to only those defendants wishing to
challenge their sentences in the trial court. The
statutory language on its face applies to all defendants
who wish to challenge the correctness of their sentences
or any irregularities in their sentencing hearings.
CONCLUSION
For the reasons stated, we find that defendants
waived their contentions of error by failing to raise
those issues in a post-sentencing motion in the trial
court. Defendants do not argue that their sentencing
challenges amount to plain error. Accordingly, the
judgments of the appellate court are affirmed.
Affirmed.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket Nos. 81422, 81683 cons.--Agenda 10--May 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
DERRICK REED, Appellant.--THE PEOPLE OF THE STATE OF
ILLINOIS, Appellee, v. DAVID TURNER, Appellant.
Opinion filed September 25, 1997.
JUSTICE NICKELS delivered the opinion of the court:
The sole issue presented in these consolidated
appeals is whether the 1993 amendment to section 5--8--
1(c) of the Unified Code of Corrections (730 ILCS 5/5--8-
-1(c) (West 1994)) requires that a defendant file a
written post-sentencing motion in the trial court to
preserve sentencing issues for appellate review. We
conclude that it does.
BACKGROUND
Defendant Reed
After a bench trial in the circuit court of Cook
County, Derrick Reed was convicted of reckless homicide
and aggravated driving under the influence of alcohol.
Reed was sentenced to seven years' imprisonment for the
reckless homicide offense to be served concurrently with
a four-year sentence for driving under the influence.
Reed did not file a post-sentencing motion in the trial
court, but challenged his sentence as excessive on
appeal. 282 Ill. App. 3d 278. The appellate court
concluded that the 1993 amendment to section 5--8--1(c)
requires a written post-sentencing motion be made in the
trial court in order to preserve sentencing issues for
appeal. The court reasoned that the plain language of the
amendment made a written post-sentencing motion the
functional equivalent of a post-trial motion. Thus, the
appellate court found defendant's sentencing challenge
waived and further found no plain error. We granted
Reed's petition for leave to appeal. 155 Ill. 2d R. 315.
Defendant Turner
After a bench trial in the circuit court of Cook
County, David Turner was convicted of first degree murder
and aggravated kidnapping. Turner was sentenced to
consecutive prison terms of life in prison for the murder
and 30 years for the aggravated kidnapping. Defendant did
not file a motion in the trial court challenging his
sentence. On appeal, Turner argued that the trial court
considered factors during sentencing that were not
supported by the record. 282 Ill. App. 3d 770. Relying on
People v. McCleary, 278 Ill App. 3d 498, 501 (1996), the
appellate court concluded that the amendment to section
5--8--1(c) requires sentencing issues be raised in a
written post-sentencing motion. Thus, the appellate court
found Turner's sentencing issues waived and further found
no plain error. We granted Turner's petition for leave to
appeal (155 Ill. 2d R. 315) and consolidated his appeal
with Reed's appeal.
ANALYSIS
In People v. Lewis, 158 Ill. 2d 386 (1994), this
court analyzed the preamendment version of section 5--8--
1(c). The statute at issue in Lewis provided in part:
"A motion to reduce a sentence may be
made, or the court may reduce a sentence
without motion, within 30 days after the
sentence is imposed. However, the court may
not increase a sentence once it is imposed."
(Emphasis added.) Ill. Rev. Stat. 1989, ch.
38, par. 1005--8--1(c).
Applying settled principles of statutory
construction, this court determined that the statutory
language did not show a legislative intent to make post-
sentencing motions a prerequisite to appealing sentencing
issues. The conclusion reached in Lewis rested primarily
on the permissive language contained in the first
sentence of the statute. Lewis, 158 Ill. 2d at 390. This
court specifically noted that this language was very
different from the mandatory language found to require a
written post-trial motion to preserve trial issues for
appeal. Lewis, 158 Ill. 2d at 390. In addition, this
court also noted that no other language in section 5--8--
1(c) suggested a legislative intent to require a post-
sentencing motion to preserve sentencing issues for
appellate review. Lewis, 158 Ill. 2d at 390.
In Lewis, this court did not consider the 1993
amendment to section 5--8--1(c) at issue here, because
the amendment applied only to sentences imposed on or
after August 11, 1993. Both of the present defendants
were sentenced after the effective date of the amendment
to section 5--8--1(c). The amendment adds one sentence:
"A motion to reduce a sentence may be
made, or the court may reduce a sentence
without motion, within 30 days after the
sentence is imposed. A defendant's challenge
to the correctness of a sentence or to any
aspect of the sentencing hearing shall be made
by a written motion filed within 30 days
following the imposition of sentence. However,
the court may not increase a sentence once it
is imposed." (Emphasis added.) 730 ILCS 5/5--
8--1(c) (West 1994) (emphasized language added
by Pub. Act 88--311, eff. August 11, 1993).
The defendants note that the amendment leaves intact
the first sentence of section 5--8--1(c). Defendants
argue that the conclusion reached in Lewis was based
primarily on the permissive language contained in the
first sentence of the statute. Therefore, defendants
contend the conclusion reached in Lewis remains sound.
Defendants further argue that the amended portion of the
statute merely provides for the procedure to be followed
if a defendant should choose to file a motion challenging
his sentence in the trial court, but it does not require
such a motion be filed to preserve sentencing issues for
appeal. See People v. Cook, 279 Ill. App. 3d 718 (1995).
The State responds that the amendment demonstrates a
clear legislative intent to require sentencing issues be
raised by motion in the trial court as a prerequisite to
appeal.
In determining the intent of the legislature
concerning the amendment to section 5--8--1(c), we apply
the same familiar rules of statutory construction applied
in Lewis. In examining a statute, it must be read as a
whole and all relevant parts should be considered. Lewis,
158 Ill. 2d at 389. Whether a statutory provision is
mandatory or merely directory depends upon the intent of
its drafters. People v. Youngbey, 82 Ill. 2d 556, 562
(1980). An important aid in determining legislative
intent is the nature of the auxiliary verb used in the
statute. Youngbey, 82 Ill. 2d at 562. Legislative use of
the word "may" is generally regarded as indicating a
permissive or directory reading, whereas use of the word
"shall" is generally considered to express a mandatory
reading. Youngbey, 82 Ill. 2d at 562.
Applying these principles, we conclude that the
legislative purpose behind section 5--8--1(c) was to
require sentencing issues be raised in the trial court in
order to preserve those issues for appellate review. In
Lewis, we noted that the precatory language at issue in
the preamendment version of section 5--8--1(c) was very
different from the mandatory statutory language found in
People v. Enoch, 122 Ill. 2d 176 (1988), to require a
written post-trial motion to preserve trial issues for
appeal. In contrast, the new mandatory language presently
contained in section 5--8--1(c) is nearly identical in
substance to the statutory language at issue in Enoch.
Compare 725 ILCS 5/116--1(b) (West 1994) ("A written
motion for a new trial shall be filed by the defendant
within 30 days following the entry of a finding or the
return of a verdict") with 730 ILCS 5/5--8--1(c) (West
1994) ("A defendant's challenge to the correctness of a
sentence or to any aspect of the sentencing hearing shall
be made by a written motion filed within 30 days
following the imposition of sentence").
In addition, the policy considerations supporting
the requirement of a written post-trial motion to
preserve trial error are equally applicable in the
context of sentencing. Requiring a written post-
sentencing motion will allow the trial court the
opportunity to review a defendant's contention of
sentencing error and save the delay and expense inherent
in appeal if they are meritorious. Such a motion also
focuses the attention of the trial court upon a
defendant's alleged errors and gives the appellate court
the benefit of the trial court's reasoned judgment on
those issues. We therefore agree with the appellate court
that the plain language now contained in section 5--8--
1(c) shows a clear legislative intent to make a post-
sentencing motion the functional equivalent of a post-
trial motion for purposes of preserving issues for
appeal.
We reject defendants' contention that the conclusion
reached in Lewis remains sound because it was based on
the permissive language contained in the first sentence
of section 5--8--1(c), which was unchanged by the
amendment. As stated in Lewis, the statute must be read
as a whole. Lewis, 158 Ill. 2d at 389-90. When read as a
whole, the first sentence provides that the trial court
"may" reduce a sentence or the defendant "may" file a
motion to reduce a sentence, but obviously neither is
required to do so. The second sentence now provides that
a defendant who decides to challenge his sentence "shall"
file a written motion in the trial court. Even without
changing the language in that first sentence, the
legislature changed the result reached in Lewis.
We also reject the defendants' contention that the
additional sentence in section 5--8--1(c) was intended
merely to describe the manner in which a defendant who
chooses to challenge his sentence in the trial court may
do so. The language in the second sentence of section 5--
8--1(c) does not limit the mandatory filing of a post-
sentencing motion to only those defendants wishing to
challenge their sentences in the trial court. The
statutory language on its face applies to all defendants
who wish to challenge the correctness of their sentences
or any irregularities in their sentencing hearings.
CONCLUSION
For the reasons stated, we find that defendants
waived their contentions of error by failing to raise
those issues in a post-sentencing motion in the trial
court. Defendants do not argue that their sentencing
challenges amount to plain error. Accordingly, the
judgments of the appellate court are affirmed.
Affirmed.
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