{ "id": 5574848, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS ASKEW, Defendant-Appellant", "name_abbreviation": "People v. Askew", "decision_date": "2003-06-16", "docket_number": "No. 1\u201401\u20142920", "first_page": "548", "last_page": "555", "citations": [ { "type": "official", "cite": "341 Ill. App. 3d 548" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132351 ], "year": 2001, "pin_cites": [ { "page": "53", "parenthetical": "recognizing that exemption" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0049-01" ] }, { "cite": "268 Ill. App. 3d 174", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381909 ], "year": 1994, "pin_cites": [ { "page": "178", "parenthetical": "all cases in which Illinois courts have recognized their authority to insert into a statute language omitted through legislative oversight" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0174-01" ] }, { "cite": "279 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75412 ], "year": 1996, "pin_cites": [ { "page": "972" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/0964-01" ] }, { "cite": "129 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5566993 ], "year": 1989, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0233-01" ] }, { "cite": "152 Ill. 2d 489", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603208 ], "year": 1992, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0489-01" ] }, { "cite": "295 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45691 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "642" }, { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0639-01" ] }, { "cite": "63 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5427013 ], "year": 1976, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0534-01" ] }, { "cite": "123 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550939 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "210-11" }, { "page": "210" }, { "page": "213-14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0204-01" ] }, { "cite": "104 Ill. 2d 8", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146647 ], "year": 1984, "pin_cites": [ { "parenthetical": "court must consider the language of an amended statute in light of the need for amendment and the purpose it serves" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0008-01" ] }, { "cite": "164 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477012 ], "year": 1995, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0104-01" ] }, { "cite": "307 Ill. App. 3d 414", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173555 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "418" }, { "page": "420-21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0414-01" ] }, { "cite": "162 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477545 ], "year": 1994, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0282-01" ] }, { "cite": "163 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477662 ], "year": 1994, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0250-01" ] }, { "cite": "321 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132390 ], "year": 2001, "pin_cites": [ { "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0013-01" ] }, { "cite": "317 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026052 ], "year": 2000, "pin_cites": [ { "parenthetical": "defendant's sentencing as a recidivist was not subject to Apprendi rule generally requiring a jury determination of fact issues relating to sentencing" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0573-01" ] }, { "cite": "523 U.S. 224", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11503479 ], "weight": 3, "year": 1998, "opinion_index": 0, "case_paths": [ "/us/523/0224-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 15, "year": 2000, "pin_cites": [ { "page": "468-69" }, { "page": "442" }, { "page": "2531" }, { "page": "490" }, { "page": "455" }, { "page": "2362-63" }, { "page": "488-90" }, { "page": "454" }, { "page": "2362" }, { "page": "474-76" }, { "page": "445-46" }, { "page": "2354" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] } ], "analysis": { "cardinality": 675, "char_count": 14822, "ocr_confidence": 0.759, "pagerank": { "raw": 1.0657831616314283e-07, "percentile": 0.5583186510101554 }, "sha256": "761caabe2334c6d18694b30f212fe6405a35121ef5fb13ecf1bca6353db73c06", "simhash": "1:687abd1a1a6f5cee", "word_count": 2472 }, "last_updated": "2023-07-14T21:38:13.673521+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS ASKEW, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE SMITH\ndelivered the opinion of the court:\nFollowing a bench trial, defendant, Thomas Askew, was found guilty of possession of a controlled substance. At the sentencing hearing on July 16, 2001, the trial court sentenced defendant to an extended-term sentence of four years in prison, based on defendant\u2019s prior convictions.\nOn appeal, defendant does not challenge the sufficiency of the evidence that led to his conviction. Instead, he argues that the trial court improperly imposed an . extended-term sentence based on his prior convictions, because: (1) the trial court did not find the existence of his prior convictions beyond a reasonable doubt, as required by the version of section 5 \u2014 8\u20142 of the Unified Code of Corrections (the Code) (730 ILCS 5/5 \u2014 8\u20142(a) (West 2000)) under which he was sentenced, and (2) the extended-term sentencing provision found in section 5 \u2014 5\u20143.2(b)(1) (730 ILCS 5/5 \u2014 5\u20143.2(b)(1) (West 2000)) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), because it does not require that his prior convictions be pled in the charging instrument or proven at trial. Defendant alleges that these errors entitle him to a new sentencing hearing.\nIn Apprendi, the Supreme Court held unconstitutional a New Jersey hate crime statute that increased the normal 5- to 10-year range of imprisonment for possession of a firearm for an unlawful purpose to a 10- to 20-year term if the trial judge found by a preponderance of the evidence that the defendant, when committing the offense for which he was being sentenced, had acted with a racially biased purpose. Apprendi, 530 U.S. at 468-69, 147 L. Ed. 2d at 442, 120 S. Ct. at 2531. The Court held that, \u201c[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.\u201d Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.\nIn recognizing that prior convictions are an exception to the general rule that facts which increase a sentence beyond the statutory maximum must be proven beyond a reasonable doubt, the Apprendi Court relied on its holding in Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S. Ct. 1219 (1998). The Court explained that the procedural safeguards attached to any \u201cfact\u201d of a prior conviction mitigate the due process concerns otherwise implicated in allowing a judge to determine a \u201cfact\u201d that increases punishment beyond the statutory maximum penalty. Apprendi, 530 U.S. at 488-90, 147 L. Ed. 2d at 454, 120 S. Ct. at 2362. Further, the Court reasoned that recidivism is not an essential element of the underlying criminal offense and recidivism does not relate to the commission of the underlying offense.\nThis court has held that these same reasons support applying the recidivism exception recognized in Apprendi to Illinois cases. People v. Lathon, 317 Ill. App. 3d 573 (2000) (defendant\u2019s sentencing as a recidivist was not subject to Apprendi rule generally requiring a jury determination of fact issues relating to sentencing); People v. Childress, 321 Ill. App. 3d 13 (2001) (same).\nAgainst this backdrop, the legislature amended the Code of Criminal Procedure of 1963 (Procedure Code) by Public Act 91 \u2014 953 (Pub. Act 91 \u2014 953, eff. February 23, 2001). The central amended provision was section 111 \u2014 3(c\u20145) (725 ILCS 5/111 \u2014 3(c\u20145) (West 2000)), which now provides in pertinent part:\n\u201cNotwithstanding any other provision of law, in all cases in which the imposition of the death penalty is not a possibility, if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt.\u201d (Emphasis added.)\nSections 5 \u2014 5\u20143(d) and 5 \u2014 5\u20144 of the Code were amended with the language:\n\u201cIf a sentence is vacated on appeal or on collateral attack due to the failure of the trier of fact at trial to determine beyond a reasonable doubt the existence of a fact (other than a prior conviction) necessary to increase the punishment for the offense beyond the statutory maximum otherwise applicable, either the defendant may be re-sentenced to a term within the range otherwise provided or, if the State files notice of its intention to again seek the extended sentence, the defendant shall be afforded a new trial.\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 5\u20143(d), 5 \u2014 5\u20144 (West 2000).\nThese amendments reflect the legislature\u2019s intention to bring the Code into conformity with the Apprendi decision both in terms of the burden of proof and other due process protections where extended sentences are sought, and in terms of the exemption from that burden and process for extended-term sentences predicated upon prior convictions.\nThe problem, according to defendant, is that the amendment to section 5 \u2014 8\u20142(a) does not contain the exception for prior convictions. Instead, that section provided (in relevant part, and at the time defendant was sentenced):\n\u201cA judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 \u2014 8\u20141 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 \u2014 5\u20143.2 were found to be present. Where a trier of fact finds beyond a reasonable doubt that such factors were present, the judge may sentence an offender to the following!.]\u201d (Emphasis added.) 730 ILCS 5/5 \u2014 8\u20142 (West 2000).\nDefendant contends that, according to the unambiguous provisions of section 5 \u2014 8\u20142, he was entitled to have proven, beyond a reasonable doubt, the fact of his prior convictions.\nThe State maintains that the legislature\u2019s failure to include the exception for extended-term sentences found elsewhere in the Unified Code of Corrections in the version of section 5 \u2014 8\u20142 under which defendant was sentenced was an oversight, and that this court can and should supply the missing language in order to give effect to clear legislative intent.\n\u201cThe cardinal rule of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the true intent of the legislature. In determining the legislative intent, a court should first consider the statutory language. This is the best means of expounding the legislative intent. Where the statutory language is clear, it will be given effect without resort to other aids for construction. However, where the language is ambiguous, it is appropriate to examine the legislative history.\u201d People v. Hickman, 163 Ill. 2d 250, 261 (1994). Defendant argues that it is improper for us to examine legislative intent in this case, inasmuch as the language of section 5 \u2014 8\u20142 is unambiguous. We disagree.\nAn ambiguity exists when a statute is capable of being understood in two or more different senses by reasonably well-informed persons. People v. Jameson, 162 Ill. 2d 282, 288 (1994). As a sentencing provision, section 5 \u2014 8\u20142 necessarily operates in relation to and along with other provisions of the sentencing scheme. Construction of the language of that section is therefore impossible without reference to the other sections of the Code and the Procedure Code which inform it, including sections 5 \u2014 5\u20143(d) and 5 \u2014 5\u20144 and 111 \u2014 3, respectively, all of which exempt prior convictions from the category of aggravating factors the existence of which must be proven beyond a reasonable doubt. We find that a reasonable person reading section 5 \u2014 8\u20142 and related sentencing provisions could conclude either that prior convictions must be proven beyond a reasonable doubt or that prior convictions are exempt from this requirement. There is accordingly an ambiguity.\nWe recognize that criminal statutes are to be construed in favor of the accused, but such construction should not be so rigid as to defeat the intent of the legislature. People v. Smith, 307 Ill. App. 3d 414, 418 (1999). In determining legislative intent, courts attempt to ascertain the objective the legislature aimed to achieve, the reason and necessity for the law, and the evils it sought to remedy. People v. Jeffries, 164 Ill. 2d 104, 110 (1995). In this case, it is clear that the legislature sought to amend the Code to bring its provisions into conformity with the decision handed down in Apprendi. As discussed earlier, Apprendi set forth certain criteria for the imposition of extended sentences, including proof of aggravating factors beyond a reasonable doubt, submission to a jury, as well as inclusion in the charging instrument (or other sufficient notice to the accused) of the factors that the State will seek to demonstrate. Apprendi also made it quite clear that extended sentences based upon prior convictions were exempt from the foregoing requirements, and the Court articulated the reasons for allowing this narrow exemption.\nWe believe that when the legislature drafted Public Act 91\u2014 953, it intended to include language exempting prior convictions from the \u201cproof beyond a reasonable doubt\u201d requirement in section 5 \u2014 8\u2014 2(a), just as it had done in sections 111 \u2014 3(c\u20145), 5 \u2014 5\u20143(d) and 5 \u2014 5\u20144. This determination is buttressed by a subsequent amendment to section 5 \u2014 8\u20142 via Public Act 92 \u2014 951 (Pub. Act 92 \u2014 951, \u00a7 5 (eff. June 27, 2002)), which substituted the following language for the \u201cproof beyond a reasonable doubt\u201d language contained in its earlier version:\n\u201cwere found to be present. If the pre-trial and trial proceedings were conducted in compliance with subsection (c \u2014 5) of Section 111 \u2014 3 of the Code of Criminal Procedure of 1963, the judge may sentence an offender to the followingL]\u201d 730 ILCS 5/5 \u2014 8\u20142 (West 2002).\nBy expressly referring to section 111 \u2014 3(c\u20145), which specifically excludes prior convictions from the scope of its rule, the legislature has evinced its clear intent that defendants may be sentenced to extended-term sentences based on judicial determinations of prior convictions. See People v. Richardson, 104 Ill. 2d 8 (1984) (court must consider the language of an amended statute in light of the need for amendment and the purpose it serves).\nWe conclude that the intent of the legislature was that the exemption language found elsewhere in the Code be included in section 5 \u2014 8\u20142(a). In such a case, \u201c \u2018words may be modified, altered, or even supplied so as to obviate any repugnancy or inconsistency with the legislative intention.\u2019 \u201d People v. Parker, 123 Ill. 2d 204, 210-11 (1988), quoting People v. Bratcher, 63 Ill. 2d 534, 543 (1976).\nIn Parker, the supreme court concluded that the legislature intended the \u201csexual relations within families\u201d statute to apply to stepparents even though it failed to include the word \u201cstepparents\u201d in the statute. Parker, 123 Ill. 2d at 210. The court held that the provision must be read to include \u201cstepparents,\u201d otherwise legislative intent would have been defeated. Parker, 123 Ill. 2d at 213-14.\nIn People v. Tellez, 295 Ill. App. 3d 639 (1998), the court construed the sentencing provision contained in a statute concerning the criminal neglect of the elderly or disabled. Despite treating both offenses equally throughout the statute, the terminology of the sentencing provision that classified the offense as a Class 3 felony referred only to neglect of the elderly and failed to mention the \u201cdisabled.\u201d Tellez, 295 Ill. App. 3d at 642; 720 ILCS 5/12 \u2014 21 (West 1996). Examining the statute as a whole, the court in Tellez determined that the evil intended by the legislature to be remedied was the criminal neglect of both the elderly and the disabled, and that the absence of the words \u201cor disabled\u201d from the penalty section was the result of legislative oversight. Tellez, 295 Ill. App. 3d at 643. The court held that the penalty section \u201cshould be read as, \u2018Criminal neglect of an elderly or disabled person is a Class 3 felony.\u2019 \u201d (Emphasis in original.) Tellez, 295 IH. App. 3d at 644.\nAnd in People v. Smith, 307 Ill. App. 3d 414, 420-21 (1999), the court concluded that the absence of the language \u201cpredatory criminal sexual assault of a child\u201d from the sentencing provisions of the indecent solicitation statute was a simple legislative oversight, which could be judicially corrected. See also People v. Shephard, 152 Ill. 2d 489, 498 (1992); People v. Chandler, 129 Ill. 2d 233, 253 (1989); Szpila v. Burke, 279 Ill. App. 3d 964, 972 (1996); People v. Rose, 268 Ill. App. 3d 174, 178 (1994) (all cases in which Illinois courts have recognized their authority to insert into a statute language omitted through legislative oversight).\nBecause in this case we find that the absence of an exemption for prior convictions in section 5 \u2014 8\u20142(a) was a legislative oversight, we now hold that the version of section 5 \u2014 8\u20142(a) under which defendant was sentenced should be read to include an exception for the fact of prior convictions from the requirement that section 5 \u2014 5\u20143.2 factors in aggravation be proven beyond a reasonable doubt.\nDefendant\u2019s second contention is that the extended-term sentencing provision found in section 5 \u2014 5\u20143.2(b)(1) (730 ILCS 5/5\u2014 5 \u2014 3.2 (West 2000)) is unconstitutional because it does not require that a prior conviction be pled in the charging instrument or proven at trial. This, he asserts, violated his due process rights as set forth in Apprendi.\nThe State maintains, and we agree, that the Apprendi Court, through its reliance on its decision in Almendarez-Torres, exempted prior convictions from the category of facts that must be charged in an indictment, submitted to a fact finder and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 474-76, 147 L. Ed. 2d at 445-46, 120 S. Ct. at 2354. See People v. Lucas, 321 Ill. App. 3d 49, 53 (2001) (recognizing that exemption). Accordingly, we decline defendant\u2019s invitation to find section 5 \u2014 5\u20143.2(b)(1) unconstitutional.\nFor the foregoing reasons, we affirm defendant\u2019s conviction and sentence.\nAffirmed.\nGORDON, EJ., and McNULTY, J., concur.", "type": "majority", "author": "JUSTICE SMITH" } ], "attorneys": [ "Michael J. Pelletier and Yasemin Eken, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Alan J. Spellberg, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS ASKEW, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1 \u2014 01\u20142920\nOpinion filed June 16, 2003.\nMichael J. Pelletier and Yasemin Eken, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb and Alan J. Spellberg, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0548-01", "first_page_order": 566, "last_page_order": 573 }