People v. Lopez ( 2023 )

NOTICE 2023 IL App (4th) 220144-UThis Order was filed under
FILED
Supreme Court Rule 23 and is NO. 4-22-0144 March 16, 2023
not precedent except in the
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
limited circumstances allowed
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Sangamon County
ADAM M. LOPEZ, ) No. 18CF1191
Defendant-Appellant. )
) Honorable
) Rudolph M. Braud Jr.,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice DeArmond and Justice Knecht concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s sentence, concluding that defendant was
not entitled to a new sentencing hearing based on a change in the law while
defendant’s motion to reconsider his sentence was pending in the trial court.
¶2 In May 2021, defendant, Adam M. Lopez, pleaded guilty to theft, a Class X
felony (720 5/16-l(a)(l) (West 2018)). In June 2021, the trial court sentenced him to 11 years in
prison and a 3-year term of mandatory supervised release (MSR) pursuant to section 5-4-1(d) of
the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-4-l(d) (West 2020)). In July
2021, defendant filed a motion to reconsider his sentence, which the trial court denied. On appeal
in appellate court case No. 4-21-0511, this court vacated the trial court’s order and granted an
agreed motion for summary remand because defendant’s counsel failed to comply with Illinois
Supreme Court Rule 604(d) (eff. July 1, 2017), and defendant subsequently filed an amended
motion to reconsider, which the trial court again denied.
¶3 Defendant appeals, arguing that (1) the trial court committed plain error by
denying defendant his right to elect sentencing under a new sentencing scheme that reduced the
term of MSR for his conviction from 3 years to 18 months or (2) in the alternative, trial counsel
was ineffective for failing to raise that same issue. We disagree and affirm the trial court’s
denial.
¶4 I. BACKGROUND
¶5 In December 2018, the State charged defendant with two counts of theft and two
counts of financial exploitation of the elderly. In October 2021, defendant pleaded guilty to a
single charge of theft (over $1,000,000), a Class X felony (720 5/16-l(a)(l) (West 2018)), and the
remaining charges were dismissed. There was no agreement as to defendant’s sentence. The
factual basis for defendant’s plea was as follows:
“[B]etween April 2014 and September 2018, in Sangamon County, [defendant]
committed the offense of Theft in that he knowingly exerted unauthorized control
over property being United States currency of [various individuals] intended for
investment or otherwise entrusted to the possession or control of [defendant] with
a value in excess of $1 million intending to deprive those individuals permanently
of the use or benefit of that property in furtherance of a single intention and
design in violation of the criminal code.”
¶6 On June 29, 2021, following a sentencing hearing, the trial court sentenced
defendant to 11 years in prison, to be served at 50% with credit for 965 days he had already spent
in custody. Further, pursuant to section 5-4-1(d) (730 ILCS 5/5-4-l(d) (West 2020)) the court
imposed a mandatory period of three years of MSR.
¶7 Two days later, on July 1, 2021, Public Act 101-652 (Safe-T Act) went into
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effect, which reduced the term of MSR for nearly all offenses. Pub. Act. 101-652, § 10-281 (eff.
July 1, 2021) (amending 730 ILCS 5/5-8-1). Under the Safe-T Act, the MSR term for certain
Class X felonies, including the one defendant committed, was reduced from 3 years to 18
months. See 730 ILCS 5/5-8-1(d)(1.5) , (g) (West Supp. 2021). (We note that neither the parties
nor the trial court discussed this change during trial court proceedings.)
¶8 That same month, defendant filed motions to withdraw his guilty plea and
reconsider his sentence. However, defendant subsequently elected to proceed only on his motion
to reconsider. Defendant argued that based on the trial court’s representations during Illinois
Supreme Court Rule 402 conferences (Ill. S. Ct. R. 402 (eff. July 1, 2012)), the court had no
reason to sentence defendant to more than 10 years in prison. The court denied the motion,
explaining that it was not bound by its comments at the Rule 402 conferences and that it never
promised to sentence defendant to 10 years in prison.
¶9 Defendant appealed, and in December 2021, this court granted the parties’ agreed
motion for summary remand because defendant’s trial counsel filed a Rule 604(d) certificate that
did not comply with Illinois Supreme Court Rule 604(d) (Ill. S. Ct. R. 604(d) (eff. July 1, 2017)).
In January 2022, defendant’s counsel filed an “Amended Affidavit in compliance with Supreme
Court Rule 604(d)” and an amended motion to reconsider sentence, raising the same issue as the
prior motion to reconsider. The trial court again denied this motion.
¶ 10 This appeal followed.
¶ 11 II. ANALYSIS
¶ 12 Defendant appeals, arguing that (1) the trial court committed plain error by
denying defendant his right to elect sentencing under a new sentencing scheme that reduced the
term of MSR for his conviction from 3 years to 18 months or (2) in the alternative, trial counsel
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was ineffective for failing to raise that same issue. We disagree and affirm the trial court’s
denial.
¶ 13 A. The Standard of Review and the Applicable Law
¶ 14 1. The Temporal Reach of Amended Criminal Statutes
¶ 15 When determining whether a statute applies retroactively or prospectively—
Illinois courts first ask whether the legislature has clearly indicated the statute's temporal reach.
People v. Hunter, 2017 IL 121306, ¶ 20, 104 N.E.3d 358. If so, assuming no constitutional
prohibition, courts give effect to the legislature's intent. Id. However, “if the temporal reach of
the statute is not clearly indicated in its text, then the statute’s temporal reach is provided by
default in section 4 of the Statute on Statutes [(5 ILCS 70/4 (West 2016))].” (Emphasis added.)
Id. ¶ 22.
¶ 16 Section 4 of the Statute on Statutes provides the following:
“No new law shall be construed to repeal a former law, whether such
former law is expressly repealed or not, as to any offense committed against the
former law, or as to any act done, any penalty, forfeiture or punishment incurred,
or any right accrued, or claim arising under the former law, or in any way
whatever to affect any such offense or act so committed or done, or any penalty,
forfeiture or punishment so incurred, or any right accrued, or claim arising before
the new law takes effect, save only that the proceedings thereafter shall conform,
so far as practicable, to the laws in force at the time of such proceeding. If any
penalty, forfeiture or punishment be mitigated by any provisions of a new law,
such provision may, by the consent of the party affected, be applied to any
judgment pronounced after the new law takes effect. This section shall extend to
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all repeals, either by express words or by implication, whether the repeal is in the
act making any new provision upon the same subject or in any other act.”
(Emphases added.) 5 ILCS 70/4 (West 2020).
¶ 17 Section 4 “is a general savings clause, which this court has interpreted as meaning
that procedural changes to statutes will be applied retroactively, while substantive changes are
prospective only.” People v. Howard, 2016 IL 120729, ¶ 20, 72 N.E.3d 346. However, courts
should not create “new proceedings for the sole purpose of applying a procedural statute that
postdates [the defendant’s] trial and sentence.” Hunter, 2017 IL 121306, ¶ 33.
¶ 18 2. Plain Error
¶ 19 “To preserve an error for consideration on appeal, a defendant must object to the
error at trial and raise the error in a posttrial motion. [Citation.] Failure to do so constitutes
forfeiture.” People v. Galarza, 2023 IL 127678, ¶ 45. However, the plain error doctrine permits a
reviewing court to consider unpreserved error under the following two scenarios:
“ ‘(1) a clear or obvious error occurred and the evidence is so closely balanced
that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant's trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence.’ ” In re D.D., 2022 IL App (4th) 220257, ¶ 31 (quoting People v.
Sargent, 239 Ill. 2d 166, 189, 940 N.E.2d 1045 (2010)).
¶ 20 The usual first step in a plain error analysis is to determine whether any error
occurred at all. Id. If error did occur, then we determine whether either of the plain error prongs
is satisfied. Id.-5-
¶ 21 3. Ineffective Assistance of Counsel
¶ 22 To state a claim of ineffective assistance of counsel, a defendant must allege that
(1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s
deficient performance prejudiced the defendant. People v. Veach, 2017 IL 120649, ¶ 30, 89
N.E.3d 366 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “Specifically, a
defendant must show that counsel’s performance was objectively unreasonable under prevailing
professional norms and that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” (Internal
quotation marks omitted.) Id. “A defendant must satisfy both prongs of the Strickland test and a
failure to satisfy [either] of the prongs precludes a finding of ineffectiveness.” (Internal quotation
marks omitted.) Id.¶ 23 4. The Standard of Review
¶ 24 Because this case concerns the interpretation and application of section 4 of the
Statute on Statues, the standard of review is de novo. Hunter, 2017 IL 121306, ¶ 15.
¶ 25 B. This Case
¶ 26 As an initial matter, because defendant concedes that he did not raise the present
issue before the trial court, he has forfeited the argument on appellate review. Nonetheless,
defendant asserts that we can review the claim as plain error. Alternatively, defendant asserts that
his trial counsel was ineffective for failing to alert him of the sentencing options available to
him. For the reasons that follow, because defendant was not entitled to be sentenced under the
amended sentencing statute, neither the trial court nor trial counsel erred by failing to alert him
of a choice that he did not have.
¶ 27 1. The Temporal Scope of Section 5-8-1
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¶ 28 The parties do not dispute that the trial court did not admonish defendant that he
had the right to choose to be sentenced under section 5-8-1 as amended by the Safe-T Act.
However, as we later explain, the change in the period of MSR contained in the amended section
5-8-1 did not apply to defendant.
¶ 29 We first turn to the text of the statute at issue to determine whether the legislature
intended for the lowered MSR term to apply retroactively. Here, section 5-8-1 expressly provides
for the temporal scope of its application. Subsection 5-8-1(g) provides that “the provisions of
paragraphs (1.5) and (2) of subsection (d) are effective on July 1, 2021, and shall apply to all
individuals convicted on or after the effective date of paragraphs (1.5) and (2) of subsection (d).”
730 ILCS 5/5-8-1(g) (West Supp. 2021).
¶ 30 Because the legislature clearly stated the temporal scope of the section—that is to
say, it became effective July 1, 2021, and applied to individuals convicted on or after July 1,
2021—we need not look to section 4 of the Statute on Statutes to determine whether section
5-8-1(d) is to be applied retroactively. Instead, we analyze whether defendant was “convicted on
or after” July 1, 2021, such that section 5-8-1(d) as amended applies.
¶ 31 Section 2-5 of the Criminal Code of 2012 defines a conviction as “a judgment of
conviction or sentence entered upon a plea of guilty or upon a verdict or finding of guilty of an
offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized
to try the case without a jury.” 720 ILCS 5/2-5 (West 2020). Section 102-14 of the Code of
Criminal Procedure of 1963 defines a judgment as “an adjudication by the court that the
defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes
the sentence pronounced by the court.” 725 ILCS 5/102-14 (West 2020).
¶ 32 Here, defendant’s sentence was pronounced on June 29, 2021, two days before
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the effective date of section (d)(1.5). Because defendant was both adjudicated guilty and
sentenced prior to July 1, 2021, defendant was “convicted” within the meaning of section 5-8-
1(g) on June 29, 2021, and subsection (d)(1.5) does not apply to his sentence.
¶ 33 2. Defendant Is Not Entitled to His Choice of Sentencing Statute
¶ 34 Defendant argues that section 4 of the Statute on Statutes—specifically, the
sentence, “If any penalty, forfeiture or punishment be mitigated by any provisions of a new law,
such provision may, by the consent of the party affected, be applied to any judgment pronounced
after the new law takes effect” (5 ILCS 70/4 (West 2020))—mandates that defendant be given
the opportunity to elect to be sentenced under the amended section 5-8-1 because his sentence
was not yet final at the time that the new MSR provision went into effect. That is to say, because
his motion to reconsider sentence was still pending, his sentence was not final, or “pronounced,”
until the trial court denied his motion.
¶ 35 Even assuming that the amended statute can be applied to mitigate defendant’s
MSR sentence, because the trial court has not pronounced a new judgment, defendant has no
right to elect to be sentenced under the amended statute.
¶ 36 Defendant emphasizes repeatedly that following a guilty plea, “the judgment in a
criminal case is not final for purposes of appeal until the trial court has ruled on any timely post-
plea motions.” However, section 4 does not contain the term “final judgment” in its text; instead,
the legislature chose to use only the term “judgment,” thereby meaning any judgment in the trial
court proceedings. In the criminal context, the “judgment” is “an adjudication by the court that
the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it
includes the sentence pronounced by the court.” 725 ILCS 5/102-14 (West 2020); see also
People v. Bradford, 106 Ill. 2d 492, 504, 478 N.E.2d 1341 (1985) (applying this definition in the
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context of section 4 of the Statute on Statutes). Further, defendant fails to make any arguments
for why the meaning of “judgment” in section 4 should be construed as synonymous with “final
judgment” for the purpose of appeal.
¶ 37 We note that the Illinois Supreme Court wrote in Hunter that the mitigating
statute at issue in that case would not apply to the defendants in that case because they “were
sentenced before the statute took effect.” Hunter, 2017 IL 121306, ¶ 52. In so holding, the court
highlighted that the defendants would have been entitled to their choice of law had the court
vacated their sentences for error. Id. ¶ 54 Likewise, the supreme court in Bradford concluded that
because “Bradford was sentenced prior to the effective date of [the amended sentencing
provision], he [was] not eligible to elect to be sentenced under it.” Bradford, 106 Ill. 2d. at 504.
The same holds true here. Had defendant presented sufficient evidence to the trial court or to this
court that his sentence was erroneous, then he may have been entitled to have the trial court’s
judgment vacated and a new sentence imposed. At that point, defendant would have received a
new judgment to which the amended section 5-8-1 could apply. In the present case, the trial court
denied defendant’s motion to reconsider his sentence, meaning that the judgment—imposed prior
to July 1, 2021—remained intact.
¶ 38 Ultimately, section 4, “in plain and unambiguous language, limits the election to
judgments entered after the new law takes effect and has no application to a judgment entered, as
here, prior to its effective date.” People v. Panczko, 390 Ill. 398, 401, 61 N.E. 2d 355, 357
(1945). Because the trial court entered its sentencing judgment prior to the effective date of the
amended section 5-8-1, defendant did not have the right to elect sentencing under the amended
statute. Accordingly, neither the court nor trial counsel erred by failing to alert defendant of a
choice that he did not have.
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¶ 39 3. People v. Spears Is Distinguishable From This Case
¶ 40 We note that defendant cites as additional authority the recent Second District
case People v. Spears, 2022 IL App (2d) 210583. However, that case is inapposite here.
¶ 41 In Spears, the defendant was sentenced as a Class X offender on the Class 1
felony of possession of a controlled substance with intent to deliver to 25 years in prison due to
his recidivist history. Id. ¶ 21 (730 ILCS 5/5-4.5-95(b) (West 2018)). The defendant filed a
motion to reconsider sentence, which was denied. Id. Defendant appealed, and the appellate
court remanded for defendant to file an amended motion to reconsider. Id.¶ 42 While that motion was pending, the legislature amended section 5-4.5-95(b) of
the Unified Code (730 ILCS 5/5-4.5-95(b) (West Supp. 2021)), which, if in force at the time of
defendant’s sentencing, would have prevented him from being sentenced as a Class X offender
by changing the requirements for what constitutes a qualifying offense. Id. Once the trial court
denied the amended motion, defendant once again appealed, arguing that “he was entitled to
elect the benefit of the amendment to section 5-4.5-95 of the [Unified Code] that took effect after
sentencing but before the trial court ruled on his amended motion to reconsider the sentence.” Id.
¶ 19. The Spears court ultimately concluded that because (1) defendant’s case had not reached a
final adjudication and (2) there were further proceedings in the trial court to be had, the change
in law should apply to the ongoing proceedings and require a new sentencing hearing. Id. ¶ 29.
¶ 43 We note that the court did not outright state whether the amended section 5-4.5-95
was a procedural change, substantive change, or a mitigation of a sentence. However, based on
the analysis the court used in forming its decision, the Second District clearly treated the
amended statute as a procedural change in the law, applying section 4 accordingly. Because
Spears concerned a procedural change regarding qualifying convictions for Class X sentencing
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and defendant’s claims here relate to an amendment mitigating a sentence of MSR, we conclude
this case and Spears are different in kind and Spears is distinguishable.
¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we affirm the trial court’s judgment.
¶ 46 Affirmed.
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