People v. Ortiz ( 2017 )

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Appellate Court Date: 2017.01.09
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People v. Ortiz, 2016 IL App (1st) 133294Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ERICK ORTIZ, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-13-3294
Filed October 17, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-16082; the
Review Hon. Maura Slattery Boyle, Judge, presiding.
Judgment Sentence vacated and cause remanded; mittimus corrected.
Counsel on Michael J. Pelletier, Patricia Mysza, and Elena B. Penick, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Janet C. Mahoney, Noah Montague, and Sheilah O’Grady-Krajniak,
Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.*
Presiding Justice Connors and Justice Cunningham concurred in the
judgment and opinion.
*
Notice of appeal was filed on October 23, 2013. However, due to extensive supplemental brief
filings, the case was not ready for determination until February 2, 2016, and assigned to Justice Liu as
authoring justice. As a result of Justice Liu’s death, this case was assigned to authoring Justice Harris
on or about May 1, 2016.
OPINION
¶1 Defendant Erick Ortiz was sentenced to 60 years’ imprisonment for first degree murder.
Defendant was 15 years old when the crime occurred. On appeal, defendant contends that his
sentence must be vacated and the matter remanded for resentencing because (1) his sentence
resulted from a statutory scheme that violates the eighth amendment of the United States
Constitution and the proportionate penalties clause of the Illinois Constitution and (2) the trial
court abused its discretion in sentencing him to a de facto life sentence that is 25 years above
the required minimum. Defendant also contends that two of his three murder convictions
should be vacated under the one-act, one-crime rule. For the following reasons, we vacate
defendant’s sentence and remand for resentencing. We also order the mittimus corrected to
reflect only one murder conviction.
¶2 JURISDICTION
¶3 The trial court sentenced defendant on August 23, 2013. He filed a motion to reconsider
sentence, which the trial court denied on September 16, 2013. His notice of appeal was filed on
September 30, 2013. Accordingly, this court has jurisdiction pursuant to article VI, section 6,
of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603
(eff. Oct. 1, 2010) and 606 (eff. Mar. 20, 2009), governing appeals from a final judgment of
conviction in a criminal case entered below.
¶4 BACKGROUND
¶5 Defendant was charged with first degree murder, and other offenses, in connection with the
death of 15-year-old Alex Arellano. His codefendant, Jovanny Martinez, was also charged
with first degree murder. On May 1, 2009, the day of the incident, Martinez was arrested and
had in his possession a gun that subsequently was determined to have fired a bullet recovered
from the victim. Martinez’s clothing also contained stains of the victim’s blood and his pants
tested positive for gunshot residue. Defendant was arrested several months later and admitted
his involvement in the murder in a videotaped statement, portions of which were published at
his trial.
¶6 In the statement, defendant stated that he is a member of the Latin Kings, and on May 1,
2009, he had heard that the victim, a “flake” or person who was not a Latin King, was in their
territory. He had a shag hairstyle and had been warned to get out of the area or he would be
killed. The victim laughed and did not leave the area, which defendant said was “stupid.”
Arming himself with a rock, defendant got into a car with friends to try to find this flake. When
they found him, he was with two girls. Defendant and his group asked the victim who he was
with and to make certain gang signs. He refused and defendant “did it the right way” and
continued to confront him. One of defendant’s friends pulled out a baseball bat and others in
the car came out and they started beating the victim. When the victim tried to run away,
defendant threw a rock at his back. Defendant’s friends yelled “hit him with the car!” The
victim stood up after being struck by the car and stood still, seemingly waiting for defendant to
hit him. Defendant then hit the victim in the face. The others came and started hitting the
victim. The group separated and defendant found himself alone with the victim. A neighbor
came out and said to get the victim out of there and to take him to the hospital. Defendant
grabbed the victim and dragged him down into the gangway to avoid getting into trouble.
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Martinez joined defendant and punched the victim. Defendant pulled the victim “all the way
back” into the gangway and closed the door. When he turned around, he saw Martinez with his
gun drawn. Defendant told Martinez not to shoot the victim, but Martinez fired at the victim’s
head. Defendant told Martinez to put the body in a garbage can or in a nearby pool, but
Martinez just wanted to get out of there. When defendant returned the next morning to check
on the victim’s body he found it was badly burned. Defendant did not know who burned the
body.
¶7 The trial court found defendant guilty of first degree murder, finding that defendant and his
group attempted “to terrorize a community and individual” and held the misconception “that
part of the City of Chicago actually belonged to you.” The trial court acknowledged that
defendant told Martinez not to shoot the victim but concluded that it “doesn’t alleviate him of
the ultimate consequence, the ultimate actions of what all of them did out there that afternoon.”
¶8 Defense counsel filed a motion for a new trial, which the trial court denied. At defendant’s
sentencing hearing, the State presented evidence in aggravation. A Cook County correctional
officer testified about an incident on May 29, 2013, where defendant struck another detainee in
the head with a slashing motion and had to be pepper sprayed. A 3½-inch metal shank was
found nearby and the detainee was bleeding from his head. The correctional officer also
testified about another incident where defendant was found possessing a shank and an incident
involving a fistfight. The State argued that defendant was “most significantly likely to
recommit violen[t] offenses if he’s released.”
¶9 In mitigation, defense counsel highlighted defendant’s troubled childhood as detailed in
the presentence investigation report (PSI). The report stated that defendant was born in
Chicago on November 27, 1993. Defendant had no prior juvenile adjudications or adult
convictions. Defendant’s neighborhood is characterized by violence and “gang banging,” and
he does not know the identity of his biological father. He has never had a father figure present
in his life and he described his relationship with his mother as “bad.” His mother abused
alcohol and drugs throughout his life and was both physically and emotionally abusive toward
her children. He stated that “[s]he used to call me a piece of s***—that was my official name.”
He was taken into the custody of the Department of Children and Family Services (DCFS)
when he was six years old. He was in DCFS custody for two years before he returned to his
mother’s care. Defendant is the oldest of his mother’s children.
¶ 10 Defendant started drinking alcohol at the age of eight, and he consumes alcohol four times
a week. He stated that no one has expressed concern about his alcohol use, and he did not think
it affected his education. He also smoked marijuana at the age of 9 and used cocaine when he
was 11 years old. In 2008, he was stabbed by members of the Satan Disciples street gang, and
that same year, he joined the Latin Kings. Defendant was expelled from high school in ninth
grade for “fights and ditching school” but has been attending school while incarcerated.
Defendant “tried to cut [him]self” while in the juvenile temporary detention center.
¶ 11 Before sentencing defendant, the trial court noted that defendant and his group “hunt[ed]”
down the victim when he came into Latin Kings territory. It found the notion that an area
“belongs” to a gang “absurd” because “[t]he streets are for everyone.” It stated that what
defendant and his group did to the victim was “unfathomable” and that they lacked
acknowledgment that one’s actions bear consequences. The trial court also recognized that
defendant had “a difficult upbringing” and his parents “allowed” him to quit school or run the
streets. However, it stated that “everybody is accountable” and defendant is “going to pay the
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price here physically by being incarcerated.” The trial court stated that defendant knew what he
did to the victim was wrong and “[defendant’s] pain or what [he] endured does not excuse [his]
infliction of pain on another human being or another person.” The trial court also noted
defendant’s continued violent conduct while incarcerated and that he showed “no
acknowledgment, no remorse.”
¶ 12 The trial court also stated that it took into consideration “mitigating factors such as the age
of the offender at the time of the occurrence, the factors *** in regard to his lack of parenting,
lack of familiar structure, of his upbringing being in DCFS custody and so forth.” The trial
court sentenced defendant to 60 years’ imprisonment followed by 3 years’ mandatory
supervised release. Defense counsel filed a motion to reconsider sentence, which the trial court
denied. Defendant filed this timely appeal.
¶ 13 ANALYSIS
¶ 14 In his initial appellate brief, defendant contended that his sentence of 60 years’
imprisonment is the product of an unconstitutional sentencing scheme. He argued that the
United States Supreme Court case of Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012),
found mandatory sentencing schemes that prevent the sentencing court from considering a
juvenile defendant’s youth before imposing a harsh sentence violate the eighth amendment.
Subsequent to defendant’s filing of this appeal, the Supreme Court issued its decision in
Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016), and the First District case of
People v. Nieto, 2016 IL App (1st) 121604, was filed. On March 28, 2016, defendant filed a
motion to cite these cases as additional authority, which this court allowed. In the motion,
defendant argued that according to Montgomery and Nieto, if a convicted juvenile received a
life sentence without parole, the sentencing court must have taken into account the
characteristics of youth for the sentence to comply with the eighth amendment, even where
imposition of the life sentence was discretionary rather than mandatory.
¶ 15 Defendant argued that his sentence of 60 years’ imprisonment, to be served at 100%, was a
de facto life sentence. Since the trial court did not consider the required youth factors outlined
in Montgomery, he contended that his sentence violated the eighth amendment. Although
defendant’s brief argues the constitutionality of the sentencing statute on its face, his
supplemental argument incorporating Montgomery and Nieto is an “as-applied” constitutional
challenge. Defendant did not raise this constitutional issue below; however, we consider the
issue since the forfeiture rule does not apply to as-applied challenges to a statute. People v.
Emmett, 264 Ill. App. 3d 296, 297 (1994); People v. Burnett, 2015 IL App (1st) 133610, ¶ 82.
¶ 16 In Miller, 567 U.S. at ___, 132 S. Ct. 2475, the Supreme Court determined that the eighth
amendment prohibits the mandatory sentencing of a juvenile to life in prison without parole,
even if the juvenile defendant was convicted of murder. In Montgomery, the Supreme Court
elaborated on its ruling in Miller. It noted that the “central substantive guarantee” of the
amendment is protection against disproportionate punishment and that Miller was based on a
“line of precedent holding certain punishments disproportionate when applied to juveniles.”
Montgomery, 577 U.S. at ___, 136 S. Ct. at 732. The Supreme Court further found that this
eighth amendment protection “goes far beyond the manner of determining a defendant’s
sentence.” Id. at ___, 136 S. Ct. at 732-33.
¶ 17 The Supreme Court analyzed its principle premise in Miller that “ ‘children are
constitutionally different from adults for purposes of sentencing’ ” due to their “ ‘diminished
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culpability and greater prospects for reform.’ ” Id. at ___, 136 S. Ct. at 733 (quoting Miller,
567 U.S. at ___, 132 S. Ct. at 2464). In noting these differences, the Court quoted the following
from Miller:
“First, children have a lack of maturity and an underdeveloped sense of
responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second,
children are more vulnerable to negative influences and outside pressures, including
from their family and peers; they have limited control over their own environment and
lack the ability to extricate themselves from horrific, crime-producing settings. And
third, a child’s character is not as well formed as an adult’s; his traits are less fixed and
his actions less likely to be evidence of irretrievable depravity.” (Internal quotation
marks omitted.) Id. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___, 132 S. Ct.
at 2464).
¶ 18 Not only do these characteristics diminish a juvenile’s culpability, but these “ ‘distinctive
attributes of youth diminish the penological justifications’ for imposing life without parole on
juvenile offenders.’ ” Id. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at
2465). The rationale of punishment as deterrence for juveniles is less compelling since “ ‘the
same characteristics that render juveniles less culpable than adults—their immaturity,
recklessness, and impetuosity—make them less likely to consider potential punishment.’ ” Id.at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2465). Likewise, the
need to incapacitate a juvenile offender is lessened because his developing maturity means he
will less likely be a danger to society “forever.” (Internal quotation marks omitted.) Id. at ___,
136 S. Ct. at 733. Furthermore, a sentence of life in prison without parole cannot take into
account the greater rehabilitative potential of juveniles. Id. at ___, 136 S. Ct. at 733. Therefore,
Miller concluded that a mandatory sentence of life without parole posed “too great a risk of
disproportionate punishment” and required that before imposing such a sentence, the
sentencing judge consider “how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” (Internal quotation marks
omitted.) Id. at ___, 136 S. Ct. at 733 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2469).
¶ 19 The Supreme Court elaborated that Miller found the sentencing of a juvenile to life without
parole “excessive for all but the rare juvenile offender whose crime reflects irreparable
corruption.” (Internal quotation marks omitted.) Id. at ___, 136 S. Ct. at 734 (quoting Miller,
567 U.S. at ___, 132 S. Ct. at 2469). Therefore, “[e]ven if a court considers a child’s age before
sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment
for a child whose crime reflects ‘unfortunate yet transient immaturity’ ” of youth rather than
“irreparable corruption.” (Internal quotation marks omitted.) Id. at ___, 136 S. Ct. at 734
(quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2469). In order to comply with the eighth
amendment’s prohibitions, the judge at a sentencing hearing must consider “youth and its
attendant characteristics” so that juveniles who may be sentenced to life without parole can be
separated from those who may not. (Internal quotation marks omitted.) Id. at ___, 136 S. Ct. at
735. The Supreme Court noted that the sentencing judge need not make an explicit finding of
incorrigibility, and left for the states to determine how to enforce this constitutional restriction
on the imposition of juvenile sentences. Id. at ___, 136 S. Ct. at 735.
¶ 20 In Nieto, a division of this court relied on Montgomery in determining that Miller’s
prohibition against mandatory life sentences without parole for juveniles also applies to
discretionary life sentences without parole. In Nieto, the 17-year-old defendant received a
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sentence of 35 years’ imprisonment for first degree murder, 25 years for discharge of a firearm,
and 18 years for aggravated battery with a firearm, to be served consecutively, in the shooting
death of Richard Soria. Nieto, 2016 IL App (1st) 121604, ¶¶ 4, 12. After receiving credit, the
defendant would have to serve 75.3 years of his sentence. Id. ¶ 13.
¶ 21 The Nieto court reasoned that Montgomery’s procedural requirement for sentencing
hearings merely enables a juvenile defendant to show that he falls within the protected class of
persons for whom the eighth amendment prohibits a particular form of punishment. Id. ¶ 47.
As discussed above, the prohibited punishment is life in prison without parole which the
sentencing judge imposed on a juvenile defendant without consideration of “youth and its
attendant characteristics.” (Internal quotation marks omitted.) Montgomery, 577 U.S. at ___,
136 S. Ct. at 735 (quoting Miller, 567 U.S. at ___, 132 S. Ct. at 2460). The Nieto court
recognized that Montgomery did not distinguish between mandatory life sentences without
parole and life sentences imposed as an exercise of discretion. Nieto, 2016 IL App (1st)
121604, ¶¶ 46, 49.
¶ 22 The juvenile defendant in Nieto was sentenced to 78 years in prison although the minimum
sentence he could have received was 51 years. Id. ¶ 43. As the Nieto court noted, he
“effectively received a sentence of natural life without parole.” See id. ¶ 42. While the
sentencing judge considered the defendant’s young age, it “did not consider the corresponding
characteristics of [his] youth” as required by Montgomery. Id. ¶ 56. Therefore, the court
vacated the defendant’s sentence and remanded the cause for resentencing. Id. ¶ 57. The court
recognized that the Illinois Supreme Court and other Illinois courts “have interpreted Miller
differently prior to Montgomery” and that “the Illinois Supreme Court has not yet had the
opportunity to address the impact of Montgomery.” Id. ¶ 50. However, the court in Nieto felt
“compelled to follow the United States Supreme Court’s most recent pronouncement on this
matter.” Id.
¶ 23 We agree with Nieto’s well-reasoned analysis. Accordingly, we hold that for a juvenile’s
mandatory or discretionary sentence of life in prison without parole to be constitutionally
valid, the sentencing judge must take into consideration his “youth and attendant
characteristics” to determine whether the defendant is “the rarest of juvenile offenders ***
whose crimes reflect permanent incorrigibility.” (Internal quotation marks omitted.)
Montgomery, 577 U.S. at ___, 136 S. Ct. at 734. We find further support for this interpretation
in our legislature’s recent enactment of section 5-4.5-105 of the Juvenile Court Act of 1987
(730 ILCS 5/5-4.5-105(a)(1)-(a)(3) (West Supp. 2015), effective January 1, 2016, and
applicable to offenses committed on or after the effective date. This section provides that for
defendants who were under the age of 18 when they committed their offenses, the court shall
consider in the sentencing hearing factors reflecting characteristics of youth (impetuosity, level
of maturity, the ability to consider risks and consequences); whether they were subjected to
outside pressures, “including peer pressure, familial pressure, or negative influences”; and
their home environment, family and “any history of parental neglect, physical abuse, or other
childhood trauma.”
¶ 24 Here, the juvenile defendant was sentenced to 60 years in prison for first degree murder.
Pursuant to section 3-6-3(a)(2)(i) of the Unified Code of Corrections (730 ILCS
5/3-6-3(a)(2)(i) (West 2014)), “a prisoner who is serving a term of imprisonment for first
degree murder *** shall receive no sentence credit and shall serve the entire sentence imposed
by the court.” Since defendant will not be eligible for release until he is 75 years old, his
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sentence is effectively a life sentence without parole. Before sentencing defendant, the trial
court recognized that defendant had “a difficult upbringing” and his parents “allowed” him to
quit school or run the streets. However, it stated that “everybody is accountable” and defendant
is “going to pay the price here physically by being incarcerated.” The trial court believed that
defendant knew what he did to the victim was wrong and “[defendant’s] pain or what [he]
endured does not excuse [his] infliction of pain on another human being or another person.” He
lacked acknowledgment that his actions bear consequences, and he showed no remorse.
¶ 25 Although the trial court considered defendant’s young age and his personal history, the
record does not indicate that the court considered the corresponding characteristics of his youth
as outlined in Miller and Montgomery or their effect on his conduct. We acknowledge that
defendant has admitted he engaged in violent and aggressive conduct leading to the death of
Alex Arellano. We also recognize that the trial court did not have the benefit of the
Montgomery decision when it sentenced defendant in 2013. We emphasize that in vacating
defendant’s sentence and remanding the cause for resentencing, we make no determination as
to the proper sentence to be imposed. We determine only that pursuant to Montgomery, before
imposing a sentence of, in effect, life in prison without parole upon a juvenile defendant, the
trial court must consider “the attendant characteristics of youth.”
¶ 26 While this appeal was pending, another division of this court issued its opinion in People v.
Patterson, 2016 IL App (1st) 101573-B. Defendant filed a motion to cite Patterson as
additional authority, we granted the motion and the State filed a response. In Patterson, the
defendant was 15 years old when he was convicted of aggravated criminal sexual assault and
sentenced, as an adult, to 36 years in prison. Since the defendant was subject to the automatic
transfer provision at the time of the offense, the State did not file a motion for a discretionary
transfer hearing. The appellate court noted that subsequent to the defendant’s conviction in
criminal court, and while his appeal was pending, the legislature amended sections 5-130 and
5-805 of the Juvenile Court Act of 1987 (705 ILCS 405/5-130, 5-805 (West Supp. 2015)).
Section 5-130 raised the minimum age for mandatory transfer to criminal court on certain
offenses from 15 to 16 years old. Section 5-805 concerned the discretionary transfer of juvenile
defendants from juvenile court to criminal court. Patterson, 2016 IL App (1st) 101573-B,
¶¶ 11-13.
¶ 27 The Patterson court then considered whether the amendments applied retroactively to the
defendant in its case. It determined that since the legislature did not provide an explicit
provision establishing the effective date of these amendments, the general savings clause of
section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2014)) applied. As our supreme court in
Caveney v. Bower, 207 Ill. 2d 82, 92 (2003), found, “section 4 represents a clear legislative
directive as to the temporal reach of statutory amendments and repeals: those that are
procedural in nature may be applied retroactively, while those that are substantive may not.”
The Patterson court determined, following previous cases (In re M.C., 319 Ill. App. 3d 713,
719 (2001); People v. Pena, 321 Ill. App. 3d 538, 543-44 (2001)), that the transfer of juvenile
cases to criminal court are procedural provisions that may be applied retroactively. Patterson,
2016 IL App (1st) 101573-B, ¶ 15. Since the defendant did not receive a discretionary transfer
hearing, the Patterson court affirmed his convictions, but vacated his sentence and remanded
the cause to the juvenile court to allow the State to file a petition for a discretionary transfer
hearing pursuant to the Act. Id. ¶ 23.
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¶ 28 The State, however, asks that this court follow People v. Hunter, 2016 IL App (1st)
141904, filed after Patterson, which found that the amendment to section 5-130 of the Juvenile
Court Act of 1987 should not be applied retroactively. Like the defendant in Patterson, the
defendant in Hunter, who was also 15 years old at the time of the offense and convicted prior to
enactment of the amendment, argued on appeal that the amendment to section 5-130 applied
retroactively to his case, and he should be resentenced in juvenile court because the State never
filed a petition to transfer his case. Id. ¶ 67.
¶ 29 To determine whether section 5-130 applied retroactively, the court in Hunter followed the
approach set forth by the United States Supreme Court in Landgraf v. USI Film Products, 511
U.S. 244 (1994), which our supreme court adopted in Commonwealth Edison Co. v. Will
County Collector, 196 Ill. 2d 27, 38 (2001). In a Landgraf analysis, courts first look at whether
the legislature has clearly indicated the temporal reach of an amendment. Id. If the legislature
has so indicated, courts must give effect to that legislative intent absent a constitutional
prohibition. Id. If no temporal reach was indicated, courts must then determine whether the
amendment has a retroactive impact (whether it would impair a party’s rights he had when he
acted, increase a party’s liability for past conduct, or impose new duties on transactions already
completed). Id. If there is no impact, the amendment may be applied retroactively. Id.¶ 30 However, in Caveney, our supreme court revisited the retroactivity issue and the Landgraf
analysis. With respect to the first step of the analysis, the court noted that in People v. Glisson,
202 Ill. 2d 499, 505 (2002), it found that section 4 of the Statute on Statutes acts as “ ‘the
general saving clause of Illinois’ ” through which the legislature “has clearly indicated the
‘temporal reach’ of every amended statute.” (Emphasis in original.) Caveney, 207 Ill. 2d at 92.
Glisson construed the language in section 4 as allowing the retroactive application of
amendments or repeals if the changes are procedural in nature, while substantive changes may
not be retroactively applied. Id. Our supreme court concluded that “[i]n light of section 4, the
Landgraf analysis in Illinois becomes quite simple. Indeed, with respect to a statutory
amendment or repeal, it is virtually inconceivable that an Illinois court will ever go beyond
step one of the Landgraf approach” because “the legislature always will have clearly indicated
the temporal reach of an amended statute, either expressly in the new legislative enactment or
by default in section 4 of the Statute on Statutes.” (Emphasis in original.) Id. at 94-95. This
determination applies to both criminal and civil statutory enactments. Id. at 92-93.
¶ 31 In a concurring opinion, Justice Freeman noted the majority opinion’s “expansive holding”
and questioned whether its interpretation of section 4 as a general savings clause for purposes
of the Landgraf analysis was proper. Id. at 98, 100-03 (Freeman, J., specially concurring,
joined by McMorrow, C.J., and Kilbride, J.). Justice Freeman believed that “the better
approach” would be to apply the two-step Landgraf analysis as adopted by the court in
Commonwealth Edison. Id. at 103. However, in the subsequent case of Allegis Realty Investors
v. Novak, 223 Ill. 2d 318 (2006), our supreme court reaffirmed its holding in Caveney. In
Allegis, the court found that “[a]fter adopting the Landgraf framework, [it] considered the
effect of section 4” on the retroactivity analysis. Id. at 331. The court reiterated its
determination that in light of section 4, “an Illinois court need never go beyond step one of the
Landgraf test” “because the legislature will always have clearly indicated the temporal reach
of an amended statute, either expressly in the new legislative enactment or by default in section
4 of the Statute on Statutes.” Id. at 332.
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¶ 32 In Hunter, another division of this court determined that Caveney did not require the
retroactive application of procedural amendments, and recent supreme court opinions
(Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023;
People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193) clearly indicate that a
retroactive impact analysis remains an important consideration. Hunter, 2016 IL App (1st)
141904, ¶¶ 75-77. Therefore, the Hunter court declined to follow Patterson’s holding that
section 4 of the Statute on Statutes sanctioned the retroactive application of procedural
amendments without need to conduct the second step of the Landgraf test (analysis of
retroactive impact). Id. Instead, it conducted both steps of the Landgraf test and found that the
amendment to section 5-130 should not be applied retroactively because doing so would have a
retroactive impact “as it would impose new duties with respect to transactions already
completed and attach new legal consequences to events completed before the statute was
changed.” Id. ¶ 73. The court reasoned that even if the amendment is a procedural change
rather than a substantive one, it should not be applied retroactively due to its retroactive
impact. Id. ¶ 71.
¶ 33 We respectfully disagree with our colleagues in Hunter that Hayashi and J.T. Einoder
clearly indicate the continued importance of a retroactive impact analysis where the legislature
did not indicate a temporal reach for an amendment. In Hayashi, our supreme court noted the
two-step Landgraf test it adopted in Commonwealth Edison, but in applying the first step found
that the legislature had “plainly indicated the temporal reach” of the statutory enactment at
issue. Hayashi, 2014 IL 116023, ¶¶ 23, 24. Therefore, it saw “no need” to consider section 4,
which “controls by default only where the legislature has not clearly defined the temporal
reach of a statute.” Id. ¶ 24. In Hayashi, the court had no need to conduct a retroactive impact
analysis or to resort to the “default” provision of section 4, nor did it discuss which one it
would have applied had the legislature not indicated a temporal reach.
¶ 34 In J.T. Einoder, our supreme court again noted the two-step Landgraf test but
acknowledged that in Caveney, it found that “Illinois courts will rarely, if ever, need to go
beyond step one of the Landgraf analysis” in light of section 4. J.T. Einoder, 2015 IL 117193,
¶¶ 29-32. Regarding the case before it, the court found that the trial court improperly searched
the entire statute for legislative intent on the amendment’s temporal reach, when it should only
have looked at the text of the amended provision itself. Id. ¶ 34. The court then reasoned that if
no express intent is found, the amendment may be applied retroactively if “it is merely
procedural in nature.” Id. For the amendment at issue, the legislature did not indicate a
temporal reach and our supreme court determined that the amendment was a substantive
change in the law because it would impose a new liability on the defendant’s past conduct. Id.
¶¶ 35, 36. Therefore, the court concluded that the amendment “cannot be applied
retroactively.” Id. ¶ 36. In J.T. Einoder, our supreme court did not find, nor did it have a need
to address, whether an impact analysis remains an important consideration in determining the
retroactive application of a procedural amendment.
¶ 35 We find neither Hayashi nor J.T. Einoder contradicts our supreme court’s determination in
Caveney that “with respect to a statutory amendment or repeal, it is virtually inconceivable that
an Illinois court will ever go beyond step one of the Landgraf approach” because “the
legislature always will have clearly indicated the temporal reach of an amended statute, either
expressly in the new legislative enactment or by default in section 4 of the Statute on Statutes.”
(Emphasis in original.) Caveney, 207 Ill. 2d at 94. Section 4 allows the retroactive application
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of amendments or repeals if the changes are procedural in nature, while substantive changes
may not be retroactively applied. Id. at 92. Accordingly, we agree with Patterson’s conclusion
that the amendment to section 5-130 is procedural in nature, and therefore, pursuant to
Caveney, it may be applied retroactively.
¶ 36 Like the defendants in Patterson and Hunter, defendant here was 15 years old when he
committed the offense, was convicted and sentenced in criminal court, and while his appeal
was pending the legislature enacted the amendment to section 5-130, which raised the
minimum age for automatic transfer to criminal court from 15 to 16 years old. Since the prior
version of the statute was in effect during defendant’s proceedings, the State did not file a
petition for a transfer hearing. Following Patterson, we affirm defendant’s conviction but
remand the case to juvenile court and give the State an opportunity to file a petition for a
transfer hearing if it so chooses. If a hearing is held and the court determines that defendant’s
case should be transferred to criminal court for sentencing, the sentencing court shall follow
our reasoning above (and that of Nieto), in determining an appropriate sentence for defendant.
¶ 37 Due to our resolution of defendant’s appeal, we need not consider defendant’s remaining
sentencing issue raised in his brief.
¶ 38 Defendant also contends that two of his convictions for first degree murder should be
vacated pursuant to the one-act, one-crime rule. The State agrees with defendant that two of his
first degree murder convictions should be vacated. Therefore, we order that the mittimus be
corrected to reflect only one conviction for first degree murder.
¶ 39 CONCLUSION
¶ 40 For the foregoing reasons, defendant’s sentence of 60 years’ imprisonment is vacated, and
the cause is remanded for resentencing. We also order the mittimus corrected to reflect only
one conviction for first degree murder.
¶ 41 Sentence vacated and cause remanded; mittimus corrected.
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