NOTICE

This 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

-2- 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

-3- 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,

,

. If so, assuming no constitutional

prohibition, courts give effect to the legislature's intent.

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

-4- 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,

,

. 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,

.

¶ 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,

. 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.,

(quoting People v.

Sargent,

,

(2010)).

¶ 20 The usual first step in a plain error analysis is to determine whether any error

occurred at all.

If error did occur, then we determine whether either of the plain error prongs

is satisfied.

-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,

,

(citing Strickland v. Washington,

(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.)

“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.)

¶ 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,

.

¶ 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

-6- ¶ 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

-7- 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,

,

(1985) (applying this definition in the

-8- 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,

. 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.

¶ 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,

,

(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.

-9- ¶ 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,

. 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

- 10 - 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.

- 11 -