People v. Hunter

2017 IL 121306

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 121306, 121345 cons.)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

KEVIN HUNTER, Appellant.—THE PEOPLE OF THE STATE OF ILLINOIS,

Appellee, v. DRASHUN WILSON, Appellant.

Opinion filed November 30, 2017.

JUSTICE THEIS delivered the judgment of the court, with opinion.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and

Burke concurred in the judgment and opinion.

OPINION

¶1 In these consolidated appeals we consider the temporal reach of two legislative

enactments: (1) an amendment to section 5-130(1)(a) of the Juvenile Court Act of

1987 (Act) (705 ILCS 405/5-130 (West 2016)), which, inter alia, eliminated armed

robbery while armed with a firearm and aggravated vehicular hijacking while

armed with a firearm from the list of automatic transfer offenses, and (2) the new

juvenile sentencing provisions codified in section 5-4.5-105 of the Unified Code of

Corrections (Code) (730 ILCS 5/5-4.5-105 (West 2016)), which, inter alia, give the

trial court discretion not to impose otherwise mandatory firearm sentencing

enhancements. The appellate court rejected defendants’ arguments for retroactive

application of these statutes to their cases that were pending on direct review when

the statutes became effective and affirmed defendants’ convictions and sentences.

People v. Hunter, 2016 IL App (1st) 141904, ¶¶ 62, 73; People v. Wilson, 2016 IL

App (1st) 141500, ¶ 16. We affirm the judgments of the appellate court, albeit for

different reasons.

¶2 BACKGROUND

¶3 No. 121306—People v. Hunter

¶4 In June 2011, the State charged defendant Kevin Hunter with aggravated

vehicular hijacking (720 ILCS 5/18-4(a)(4) (West 2010)), aggravated kidnapping

(720 ILCS 5/10-2(a)(6) (West 2010)), and armed robbery (720 ILCS 5/18-2(a)(2)

(West 2010)), all while armed with a firearm. The charges arose out of an incident

the previous month in which Hunter and two unidentified men robbed Steven

Maxwell of personal property including his vehicle and kidnapped him, all at

gunpoint. At the time of the offenses, Hunter was 16 years old.

¶5 The version of section 5-130(1)(a) of the Act then in effect provided as follows:

Ҥ 5-130. Excluded jurisdiction.

(1)(a) The definition of delinquent minor under Section 5-120 of this

Article shall not apply to any minor who at the time of an offense was at least 15

years of age and who is charged with: (i) first degree murder, (ii) aggravated

criminal sexual assault, (iii) aggravated battery with a firearm where the minor

personally discharged a firearm ***, (iv) armed robbery when the armed

robbery was committed with a firearm, or (v) aggravated vehicular hijacking

when the hijacking was committed with a firearm.

These charges and all other charges arising out of the same incident shall be

prosecuted under the criminal laws of this State.” 705 ILCS 405/5-130 (West

2010).

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Pursuant to this statute, Hunter was tried in adult court.

¶6 Following a bench trial in the circuit court of Cook County, Hunter was

convicted on all three counts. The trial court sentenced Hunter to 21 years on each

count—the 6-year minimum for a Class X felony, plus the mandatory 15-year

firearm enhancement—to be served concurrently. See 720 ILCS 5/18-4(b) (West

2010); 720 ILCS 5/10-2(b) (West 2010); 720 ILCS 5/18-2(b) (West 2010); 730

ILCS 5/5-4.5-25(a) (West 2010). Hunter appealed.

¶7 While Hunter’s case was pending in the appellate court, Public Acts 99-69 and

99-258 became effective. 1 Both Public Acts adopted new, identical sentencing

provisions applicable to defendants under the age of 18 at the time of the

commission of the offense. Pub. Act 99-69, § 10 (eff. Jan. 1, 2016) (adding 730

ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1, 2016) (adding 730 ILCS

5/5-4.5-105). Subsection (b) of the new sentencing provisions directs that the court

“may, in its discretion, decline to impose any otherwise applicable sentencing

enhancement based upon firearm possession, possession with personal discharge,

or possession with personal discharge that proximately causes great bodily harm,

permanent disability, permanent disfigurement, or death to another person.” 730

ILCS 5/5-4.5-105(b) (West 2016).

¶8 Public Act 99-258 also amended section 5-130(1)(a) of the Act, raising the age

for automatic transfer to adult court from 15 years to 16 years and eliminating

armed robbery while armed with a firearm and aggravated vehicular hijacking

while armed with a firearm from the list of automatic transfer offenses. Pub. Act

99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-130(1)(a)).

¶9 In supplemental briefing in the appellate court, Hunter argued that the

amendment to the Code and the new sentencing provisions in the Act applied

retroactively and that his case should be remanded for a discretionary transfer

hearing, as well as a new sentencing hearing. The appellate court held that neither

1

Neither public act contains an effective date, but pursuant to the Effective Date of Laws Act (5

ILCS 75/0.01 et seq. (West 2014)), because the underlying bills were both “passed” prior to June 1,

2015 (see 5 ILCS 75/3 (West 2014)), the effective date for both public acts was January 1, 2016 (see

5 ILCS 75/1(a) (West 2014)). See also Ill. Const. 1970, art. IV, § 10 (“The General Assembly shall

provide by law for a uniform effective date for laws passed prior to June 1 of a calendar year.”).

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provision applied retroactively and rejected Hunter’s other claims of error, thus

affirming his convictions and sentence. Hunter, 2016 IL App (1st) 141904, ¶¶ 20,

22, 62, 73, 80. We allowed Hunter’s petition for leave to appeal. Ill. S. Ct. R. 315

(eff. Mar. 15, 2016).

¶ 10 No. 121345—People v. Wilson

¶ 11 In October 2012, defendant Drashun Wilson was indicted for attempted first

degree murder (720 ILCS 5/8-4(a) (West 2012)) and aggravated battery with a

firearm (720 ILCS 5/12-3.05(e)(1) (West 2012)) in connection with the September

23, 2012, shooting of Floyd Fulton. At the time of the offenses and indictment,

Wilson was 17 years old and, under the Act, was tried in adult court. See 705 ILCS

405/5-120 (West 2012). Following a jury trial in the circuit court of Cook County,

Wilson was found guilty of both offenses. The jury also found that Wilson

personally discharged a firearm that proximately caused great bodily harm to

another person. After merging the aggravated battery conviction into the attempted

murder conviction, the trial court sentenced Wilson to 31 years’

imprisonment—the 6-year minimum for a Class X felony, plus the minimum

mandatory 25-year firearm enhancement applicable where the defendant

personally discharged a firearm that proximately caused great bodily harm. See 720

ILCS 5/8-4(c)(1)(D) (West 2012); 730 ILCS 5/5-4.5-25(a) (West 2012). Wilson

appealed.

¶ 12 While Wilson’s case was pending in the appellate court, Public Acts 99-69 and

99-258 became effective. In supplemental briefing, Wilson argued that he was

entitled to be resentenced under section 5-4.5-105(b) of the Code, under which the

trial court could decline to impose the firearm enhancement. The appellate court

held that section 5-4.5-105(b) applied prospectively only. Wilson, 2016 IL App

(1st) 141500, ¶ 16. The appellate court rejected Wilson’s other claims of error and

affirmed his conviction and sentence. Id. ¶¶ 1, 28, 35, 43, 46-47.

¶ 13 We allowed Wilson’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Mar.

15, 2016)) and consolidated Wilson’s and Hunter’s appeals for review.

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¶ 14 ANALYSIS

¶ 15 Whether the statutory amendments at issue here apply retroactively to

defendants’ cases presents an issue of statutory construction. As such, our review

proceeds de novo. People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193,

¶ 27; People v. Amigon, 239 Ill. 2d 71, 84 (2010).

¶ 16 I

¶ 17 We consider first the amendment to section 5-130(1)(a) of the Act, adopted in

Public Act 99-258. As noted above, the amendment changed the requirements for

automatic transfer of a juvenile to adult court, by raising the minimum age from 15

years to 16 years and by eliminating armed robbery while armed with a firearm and

aggravated vehicular hijacking while armed with a firearm from the list of

automatic transfer offenses. Hunter was charged with both of these offenses.

Relying on People ex rel. Alvarez v. Howard, 2016 IL 120729, Hunter argues that

the amendment to section 5-130(1)(a) applies retroactively to his case, and because

the offenses with which he was charged are no longer qualifying offenses for

automatic transfer to adult court, he requests remand to the juvenile court for a

discretionary transfer hearing but for purposes of sentencing only. Hunter does not

challenge his conviction.

¶ 18 Howard was decided after we granted Hunter’s petition for leave to appeal.

There, we addressed the retroactivity of the amendment to section 5-130(1)(a)

adopted in Public Act 99-258. Although Howard involved the change in the

minimum age requirement for transfer to adult court, rather than the change in the

list of automatic transfer offenses that is at issue here, both changes appear in the

same section of the Act. Thus, Howard informs our analysis in this case.

¶ 19 In Howard, the defendant, who was 15 years old, was indicted on multiple

offenses, including first degree murder. The charges against defendant were

brought in adult court, pursuant to section 5-130(1)(a) of the Act (705 ILCS

405/5-130(1)(a) (West 2014)). Howard, 2016 IL 120729, ¶ 4. While the

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defendant’s case was pending in the trial court, Public Act 99-258 became

effective. The defendant argued that his case must proceed in juvenile court

because he no longer met the minimum age requirement for transfer to adult court.

The trial court agreed and transferred the cause to juvenile court. The State sought a

writ of mandamus directing the trial court to rescind the transfer order. We denied

the writ. Howard, 2016 IL 120729, ¶¶ 35-36.

¶ 20 In Howard, we reviewed the proper analysis courts must employ when

determining the temporal reach of a statute. We noted that this court adopted the

United States Supreme Court’s retroactivity analysis set forth in Landgraf v. USI

Film Products, 511 U.S. 244 (1994). Howard, 2016 IL 120729, ¶ 19 (citing

Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 36-39 (2001)).

Under Landgraf, we first ask whether the legislature has clearly indicated the

statute’s temporal reach. If so, and assuming no constitutional prohibition, the

legislature’s intent will be given effect. Howard, 2016 IL 120729, ¶ 19. If the

legislature’s intent is not clear, then, under Landgraf, the court must determine

whether the statute has a retroactive impact, i.e., whether the statute “would impair

rights a party possessed when he acted, increase a party’s liability for past conduct,

or impose new duties with respect to transactions already completed.” (Internal

quotation marks omitted.) Id. (quoting Commonwealth Edison, 196 Ill. 2d at 38,

quoting Landgraf, 511 U.S. at 280). “If there is no retroactive impact, the statutory

amendment may be applied retroactively; if there is a retroactive impact, the court

presumes that the legislature intended the amendment to be prospective only.” Id.

¶ 21 Howard made plain, however, that based on section 4 of the Statute on Statutes

(5 ILCS 70/4 (West 2014)), Illinois courts need never go beyond the first step of the

Landgraf analysis. Howard, 2016 IL 120729, ¶ 20. Section 4 of the Statute on

Statutes, which has never been amended since its adoption in 1874 (see Ill. Rev.

Stat. 1874, ch. 131, § 4 (Hurd 1874)) states:

“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

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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 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.” 5 ILCS 70/4 (West 2016).

¶ 22 As Howard explained, 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.” Howard, 2016 IL

120729, ¶ 20 (citing People v. Glisson, 202 Ill. 2d 499, 506-07 (2002)). Thus, 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. Id.

¶ 23 Applying this analysis to Public Act 99-258, Howard noted that the portion of

the public act amending section 5-130(1)(a) did not indicate its temporal reach, thus

requiring resort to the default rule in section 4 of the Statute on Statutes. Id. ¶¶ 21,

28. We agreed with the parties that the amendment to section 5-130(1)(a),

impacting whether a defendant is tried in juvenile or criminal court, is purely a

matter of procedure and concluded that, in the absence of a constitutional

impediment to retroactive application, the amendment applies to “pending cases,”

including the defendant’s case. Id.

¶ 24 Howard rejected the State’s argument that applying the amended statute to the

defendant’s case, which had been pending in adult court for three years, would run

afoul of section 4’s requirement that procedural changes only apply “so far as

practicable” (5 ILCS 70/4 (West 2014)). Howard, 2016 IL 120729, ¶ 32. We

observed that transferring the defendant’s case to juvenile court for a transfer

hearing “is something that is feasible.” Id.

¶ 25 Hunter argues that, like Howard, his case was also “pending” on the effective

date of the amendment, albeit on direct review in the appellate court. Hunter posits

that because our retroactivity jurisprudence does not distinguish between cases

pending in the trial court and cases pending on direct review when a statutory

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amendment becomes effective, Howard requires remand of his case to the juvenile

court for a discretionary transfer hearing.

¶ 26 The State counters that this court’s statement in Howard that the amendment

applies retroactively to “pending cases” does not mean that it applies broadly to all

nonfinal cases, i.e., cases that are pending on direct review. The State argues that

the amendment only applies retroactively to cases pending in criminal court that are

capable of conforming to the new statute. The State maintains that applying the

amendment to cases pending on direct review would result in an absurdity,

requiring a remand in every such case where the legislature made an intervening

change to a trial court procedure. The State further argues that even if the

amendment applies retroactively to cases that were pending on direct review at the

time the amendment became effective, remand to the juvenile court for a

discretionary transfer hearing in this case is not practicable because Hunter, who is

now 22 years old, has aged out of the juvenile court system.

¶ 27 We agree with Hunter that our retroactivity jurisprudence has not typically

distinguished between cases that are pending in the trial court and cases pending in

the appellate court on direct review at the time a statutory amendment becomes

effective. The same retroactivity analysis that we employed in Howard, where the

defendant’s case was pending in the trial court when the amendment became

effective, has also been employed by this court where the defendant’s case was

pending in the appellate court at the time the amendment became effective. See

Glisson, 202 Ill. 2d at 508-09 (holding that the general savings clause of section 4

of the Statute on Statutes prohibited retroactive application of a substantive

statutory amendment that went into effect while the defendant’s case was pending

on appeal); accord People v. Atkins, 217 Ill. 2d 66, 71-73 (2005) (holding that under

section 4 of the Statute on Statutes, a substantive amendment that became effective

after the defendant was convicted and sentenced would not apply retroactively).

¶ 28 Our agreement with Hunter on this point, however, does not lead us to conclude

that, pursuant to section 4 of the Statute on Statutes and our decision in Howard,

remand for further proceedings is mandated in this case. The process of statutory

construction requires more than mechanical application of a rule of law or a

decision of this court. We have an obligation to construe statutes in a manner that

will avoid absurd, unreasonable, or unjust results that the legislature could not have

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intended. People ex rel. Alvarez v. Gaughan, 2016 IL 120110, ¶ 19; Illinois State

Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL 117418, ¶ 39. As

we recently observed, “the process of statutory construction should not be divorced

from consideration of real-world results.” People v. Fort, 2017 IL 118966, ¶ 35.

Here, Hunter’s construction of the amended statute would lead to real-world results

that the legislature could not have intended.

¶ 29 We return to the Howard case, on which Hunter relies. Although we stated in

Howard that the amendment to section 5-130(1)(a) of the Act applies to “pending

cases” (Howard, 2016 IL 120729, ¶ 28), we did not elaborate as to what that term

means in the context of applying the default rule of section 4 of the Statute on

Statutes. Certainly, we were not asked in Howard to consider the retroactivity of a

procedural statute where, as here, the case was pending in the appellate court, rather

than the trial court, when the statute became effective.

¶ 30 We also observe that our application of section 4 in the Howard case began

with this statement of the law: “Under section 4, substantive amendments may not

be applied retroactively, but ‘procedural law changes will apply to ongoing

proceedings.’ ” (Emphasis added.) Id. (quoting People v. Ziobro, 242 Ill. 2d 34, 46

(2011) (citing section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2006)))). In

Howard, the trial court proceedings had not yet been concluded. In a real-world

sense those proceedings were “ongoing.” Indeed, we framed the question in

Howard as whether, given the statutory amendment, the defendant should

“continue” to be prosecuted in adult court. Id. ¶ 31. Application of the Statute on

Statute’s default rule meant that the amended statute, changing the requirements for

automatic transfer to adult court, would apply retroactively to a pending case, i.e., a

case in which the trial court proceedings had begun under the old statute but had not

yet been concluded.

¶ 31 Howard is consistent with the language of section 4 of the Statute on Statutes,

which requires that “the proceedings thereafter”—after the adoption of the new

procedural statute—“shall conform, so far as practicable, to the laws in force at the

time of such proceeding.” (Emphasis added.) 5 ILCS 70/4 (West 2016). Section 4

contemplates the existence of proceedings after the new or amended statute is

effective to which the new procedure could apply. The phrase “ongoing

proceedings,” used by this court in Ziobro and Howard, conveys this idea. See also

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People v. Zito, 237 Ill. 434, 438 (1908) (under section 4, “what remained to be

done” must conform to the mode of procedure under the new act).

¶ 32 In Hunter’s case, however, the proceedings in the trial court were completed

well before the statute was amended. No “ongoing proceedings” exist to which the

amended statute could apply. Thus, in contrast to Howard, this is not a case where

we must decide whether the defendant should “continue” to be prosecuted in adult

court. This is also not a case where remand for further proceedings is necessitated

by reversible error at trial. See Ziobro, 242 Ill. 2d at 45-46 (where, after reversing

the trial court’s dismissal of the criminal charges, we instructed that a new

procedural statute would apply retroactively to the proceedings on remand).

Although Hunter challenged the sufficiency of the evidence on direct review, the

appellate court rejected that argument (Hunter, 2016 IL App (1st) 141904,

¶¶ 13-20), and Hunter does not press that claim, or any other claim of reversible

error, in this court. Simply stated, there are no “proceedings thereafter” capable of

“conform[ing]” to the amended statute. 5 ILCS 70/4 (West 2016). Nothing remains

to be done.

¶ 33 Because Hunter’s trial court proceedings have been concluded, and no further

trial court proceedings are necessitated by reversible error, applying the amended

statute retroactively to Hunter’s case would result in this court effectively creating

new proceedings for the sole purpose of applying a procedural statute that postdates

his trial and sentence. We have grave concerns about such a result.

¶ 34 The Landgraf opinion, from which our retroactivity jurisprudence sprang,

speaks to this issue. There, the Supreme Court observed that procedural rules may

often be applied in cases that arose before the rule was enacted. Landgraf, 511 U.S.

at 275. The Court, however, went on to note:

“Of course, the mere fact that a new rule is procedural does not mean that it

applies to every pending case. A new rule concerning the filing of complaints

would not govern an action in which the complaint had already been properly

filed under the old regime, and the promulgation of a new rule of evidence

would not require an appellate remand for a new trial.” Id. n.29.

¶ 35 Justice Scalia, in his concurrence, made a similar observation:

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“A new rule of evidence governing expert testimony, for example, is aimed at

regulating the conduct of trial, and the event relevant to retroactivity of the rule

is introduction of the testimony. Even though it is a procedural rule, it would

unquestionably not be applied to testimony already taken—reversing a case on

appeal, for example, because the new rule had not been applied at a trial which

antedated the statute.” (Emphasis in original.) Id. at 291-92 (Scalia, J.,

concurring, joined by Kennedy and Thomas, JJ.).

See also Michael S. Gilmore, Application of Statutory Changes to Cases in

Progress: The Crossroads of the Legislative and Judicial Power—An Analysis of

Federal and Idaho Law, 34 Idaho L. Rev. 517, 543 (1998) (reviewing Justice

Scalia’s concurrence in Landgraf and noting that if procedural rule changes were

truly applied retroactively “there would be retrial of cases every time new statutes

governing pleadings, appeals, and evidence” were adopted that “would lead to

different results from the old statutes”).

¶ 36 We recognize that our retroactivity jurisprudence, though flowing from

Landgraf, was tempered by our construction of section 4 of the Statute on Statutes,

and we presume that the General Assembly adopted Public Act 99-258 with

knowledge of section 4 and this court’s interpretation thereof. See People v. Villa,

2011 IL 110777, ¶ 36; People v. Jones, 214 Ill. 2d 187, 199 (2005). But in none of

the several cases from this court on which Hunter relies did we remand a case to the

trial court because “the new [procedural] rule had not been applied at a trial which

antedated the statute.” Landgraf, 511 U.S. at 291-92 (Scalia, J., concurring, joined

by Kennedy and Thomas, JJ.). 2 Remand under such circumstances would create

2

See Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 333-34 (2006) (holding that curative

legislation, adopted while the case was on appeal to this court, and which validated the challenged

tax levy, applied retroactively under the clear language of the statute); Atkins, 217 Ill. 2d at 71-73

(holding that a substantive amendment to the burglary statute, which became effective after the

defendant was convicted and sentenced, would not apply retroactively); Glisson, 202 Ill. 2d at 509

(holding that substantive statutory amendment repealing the offense of which the defendant was

convicted, which went into effect while the defendant’s case was pending on appeal, would not

apply retroactively); People v. Digirolamo, 179 Ill. 2d 24, 49-51 (1997) (holding that an amendment

to the venue statute, which became effective after the trial proceedings concluded, would not apply

retroactively because the amendment effected a substantive change in the law); Johnson v. Edgar,

176 Ill. 2d 499, 521-22 (1997) (holding that curative legislation, adopted while the case was pending

on appeal, would apply retroactively pursuant to the statute’s express language); People v. Kellick,

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inconvenience and a waste of judicial resources—a real-world result that the

General Assembly could not have intended. Accordingly, we will not apply the

amended statute retroactively to Hunter’s case.

¶ 37 We reject Hunter’s argument for retroactive application for the further reason

that new procedural rules only apply to ongoing proceedings “so far as

practicable.” 5 ILCS 70/4 (West 2016). We agree with the State that under the facts

of this case, application of the amended statute is not practicable.

¶ 38 Howard equated what is “practicable” to what is “feasible” and concluded in

that case that transfer to the juvenile court for a transfer hearing was feasible, even

if not convenient. Howard, 2016 IL 120729, ¶ 32. At the time of our decision in

Howard, the defendant was 19 years old 3 and still subject to the jurisdiction of the

juvenile court. See People v. Fiveash, 2015 IL 117669, ¶¶ 14-16 (scope of the Act

is limited to persons under the age of 21, and therefore, the juvenile court had no

authority over the 23-year-old defendant). Hunter is now 22 years old. A

discretionary transfer hearing in the juvenile court is no longer feasible because the

juvenile court may not exercise jurisdiction over Hunter. Id.

¶ 39 We disagree with Hunter that, pursuant to Fort, 2017 IL 118966, and People v.

Brown, 225 Ill. 2d 188 (2007), retroactive application of the amendment to section

5-130(1)(a) is yet feasible, despite his age.

¶ 40 In Fort, the juvenile defendant was tried in adult court for first degree murder,

an automatic transfer offense, but convicted of second degree murder, which is not

an automatic transfer offense. We held that plain error occurred when the trial court

sentenced the defendant as an adult under the Unified Code of Corrections without

the State first filing a motion requesting adult sentencing, as required by the Act

(705 ILCS 405/5-130(1)(c)(ii) (West 2008)). Fort, 2017 IL 118966, ¶¶ 30-31. We

determined that the appropriate remedy was to vacate the defendant’s sentence and

102 Ill. 2d 162, 181 (1984) (holding that the legislative history of a statute changing the death

penalty eligibility requirements, that became effective five days after the defendant was sentenced,

indicated the legislature’s intent that the statute operate retroactively to a date that was 15 days prior

to the commission of the murder, requiring vacatur of the defendant’s death sentence).

3

The defendant was born on September 4, 1997 (Howard, 2016 IL 120729, ¶ 4), and our

opinion was filed December 1, 2016.

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remand the matter to the trial court where the State would have the opportunity to

file an appropriate motion for adult sentencing. Id. ¶ 41. We noted: “Should the trial

court find after the hearing that defendant is not subject to adult sentencing, the

proper remedy is to discharge the proceedings against defendant since he is now

over 21 years of age and is no longer eligible to be committed as a juvenile under

the Act.” Id.

¶ 41 In contrast to Fort, where the case was remanded to adult court to allow the

State to file a motion in that court requesting adult sentencing, Hunter seeks remand

for a discretionary transfer hearing, which, he acknowledges, proceeds in the

juvenile court. See 705 ILCS 405/5-805(3)(a) (West 2016). But as already noted,

Hunter, who is 22 years old, is no longer subject to the jurisdiction of the juvenile

court.

¶ 42 In Brown, on which Hunter also relies, the juvenile defendant was tried and

convicted in adult court for attempted murder. Several years later, he filed a

successive postconviction petition challenging his conviction because the statute

under which his case had been transferred to adult court was found

unconstitutional. We held that, because the statute was unconstitutional and void

ab initio, the defendant’s transfer to adult court based on that statute was also void

and the defendant was thus entitled to a new transfer hearing. Brown, 225 Ill. 2d at

199. Although the defendant would have been 25 or 26 years old at the time we

remanded the matter to the circuit court, 4 the State apparently made no argument

challenging the remand based on the defendant’s age. Brown’s silence on an issue

that was not raised does not lend support to Hunter’s position here that a remand to

the juvenile court for a discretionary transfer hearing is feasible, notwithstanding

that the juvenile court cannot exercise jurisdiction over a 22-year-old defendant.

¶ 43 In sum, because the amendment to section 5-130(1)(a) of the Act did not

become effective until after Hunter’s trial court proceedings were concluded and

his case was pending in the appellate court; because no reversible error necessitates

remand for further proceedings to which the amended statute could apply; and

because Hunter, in any event, is no longer subject to the jurisdiction of the juvenile

4

The defendant was 16 in 1997 at the time of the offense (Brown, 225 Ill. 2d at 192), and our

opinion in Brown was filed in 2007.

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court, making remand impracticable, we hold that the amendment to section

5-130(1)(a) of the Act does not apply retroactively to Hunter’s case.

¶ 44 II

¶ 45 We next consider the new juvenile sentencing provisions in the Code, adopted

in Public Acts 99-69 and 99-258. Both public acts adopted identical provisions

titled “SENTENCING OF INDIVIDUALS UNDER THE AGE OF 18 AT THE

TIME OF THE COMMISSION OF AN OFFENSE.” Pub. Act 99-69, § 10 (eff.

Jan. 1, 2016) (adding 730 ILCS 5/5-4.5-105); Pub. Act 99-258, § 15 (eff. Jan. 1,

2016) (also adding 730 ILCS 5/5-4.5-105). The new provisions state in relevant

part:

“(a) On or after the effective date of this amendatory Act of the 99th

General Assembly, when a person commits an offense and the person is under

18 years of age at the time of the commission of the offense, the court, at the

sentencing hearing conducted under Section 5-4-1, shall consider the following

additional factors [enumerated 1 through 9] in mitigation in determining the

appropriate sentence:

***

(b) Except as provided in subsection (c), the court may sentence the

defendant to any disposition authorized for the class of the offense of which he

or she was found guilty as described in Article 4.5 of this Code, and may, in its

discretion, decline to impose any otherwise applicable sentencing enhancement

based upon firearm possession, possession with personal discharge, or

possession with personal discharge that proximately causes great bodily harm,

permanent disability, permanent disfigurement, or death to another person.”

730 ILCS 5/5-4.5-105 (West 2016).

¶ 46 Section 5-4.5-105 of the Code became effective while defendants’ cases were

pending in the appellate court on direct review. In each case, the appellate court

rejected the defendant’s argument that subsection (b), which gives the court

discretion not to impose otherwise mandatory firearm enhancements, applies

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retroactively to his case. Hunter, 2016 IL App (1st) 141904, ¶ 43; Wilson, 2016 IL

App (1st) 141500, ¶ 16. In Hunter’s case, the appellate court held that the

legislature clearly indicated in subsection (a) that the new provisions apply to

sentencing hearings “ ‘[o]n or after the effective date’ ” of the statute, January 1,

2016. Hunter, 2016 IL App (1st) 141904, ¶ 43. In Wilson’s case, the appellate court

also relied on the language in subsection (a), holding that a sentencing court’s

consideration of the additional mitigating factors set forth in subsection (a) and the

sentencing court’s discretion not to impose a firearm enhancement as set forth in

subsection (b) may be exercised only when an individual that is under 18 years of

age commits an offense on or after the effective date of the statute—January 1,

2016. Wilson, 2016 IL App (1st) 141500, ¶ 16.

¶ 47 Defendants argue that the appellate court erred in applying the language in

subsection (a), which limits its temporal reach, to subsection (b). According to

defendants, the legislature’s decision to omit such limiting language from

subsection (b) means that the legislature intended subsection (b) to apply

retroactively. The State counters that section 5-4.5-105 establishes a

comprehensive sentencing scheme, and that the legislature’s expression of

temporal reach in subsection (a) applies to the entire scheme.

¶ 48 Under our well-settled rules of statutory construction, “where the legislature

includes particular language in one section of a statute but omits it in another

section of the same statute, courts will presume that the legislature acted

intentionally in the exclusion or inclusion” (People v. Smith, 2016 IL 119659, ¶ 30)

and that the legislature intended different results (In re K.C., 186 Ill. 2d 542, 549-50

(1999)). Here, the fact that the legislature included language in subsection (a)

limiting its temporal reach but omitted such language in subsection (b) is indicative

that the legislature intended different results and that the limiting language in

subsection (a) applies only to that subsection. Thus, only the trial court’s obligation

set forth in subsection (a) to consider additional factors in mitigation at sentencing

is controlled by the limiting language in that same subsection.

¶ 49 Had the legislature intended all of the new sentencing provisions to have the

same temporal reach as the provisions in subsection (a), the legislature could have

included the limiting language in a separate subsection so stating, as it did in

connection with another amendment adopted as part of the same public act. See

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Pub. Act 99-258, § 5 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-805, adding

705 ILCS 405/5-805(7) ( “[t]he changes made to this Section *** apply to a minor

who has been taken into custody on or after the effective date of this amendatory

Act”)). The legislature, however, did not do so with respect to the new juvenile

sentencing provisions.

¶ 50 The legislature also could have preceded all of the subsections of the new

statute with a statement indicating that all of the new provisions have the same

temporal reach, as it did when it added another new section to the Act. See Pub. Act

99-258, § 5 (eff. Jan. 1, 2016) (adding 705 ILCS 405/5-822 (providing, prior to the

numbered paragraphs, for data collection to commence “[o]n the effective date of

this amendatory Act of the 99th General Assembly”)). The legislature did not do so.

¶ 51 We presume that the legislature acted intentionally when it included the

limiting language in subsection (a) but omitted that same language in subsection

(b), and we therefore agree with defendants that the appellate court erred in

applying the language in subsection (a) to subsection (b). That said, we disagree

with defendants that the omission of that language in subsection (b) means that the

legislature must have intended that subsection (b) apply retroactively to cases that

were pending on direct review when the statute became effective. Just as we will

not read the limiting language of subsection (a) into subsection (b), neither will we

inject into the statute an unexpressed provision requiring retroactive application of

subsection (b). See King v. First Capital Financial Services Corp., 215 Ill. 2d 1, 26

(2005) (courts may not, in the guise of statutory construction, annex new provisions

not expressed by the legislature).

¶ 52 Because the statute is silent as to the temporal reach of subsection (b), we once

again refer to section 4 of the Statute on Statutes. Although the parties dispute

whether subsection (b) is properly labeled “procedural” or “substantive,” we need

not decide that issue. Rather, we agree with the State that, under section 4,

subsection (b) of the new statute cannot apply to Hunter and Wilson, who were

sentenced before the statute took effect.

¶ 53 The second sentence of section 4 of the Statute on Statutes expressly provides:

“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

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any judgment pronounced after the new law takes effect.” 5 ILCS 70/4 (West

2016).

¶ 54 In People v. Hansen, 28 Ill. 2d 322, 340-41 (1963), we held that the defendant

was not entitled to be resentenced under the new criminal code, which went into

effect just 13 days after he was sentenced, because, under section 4, “a punishment

mitigated by a new law is applicable only to judgments after the new law takes

effect.” Similarly, in People v. Bradford, 106 Ill. 2d 492, 504 (1985), we held that,

under section 4, the defendant was not eligible to be sentenced under a statutory

amendment that became effective while his case was pending in this court because

he had already been sentenced prior to the statute’s effective date. Where, however,

a defendant’s sentence is vacated on appeal and the matter remanded for

resentencing, under section 4 of the Statute on Statutes, the defendant may elect to

be sentenced under the law in effect at the time of the new sentencing hearing.

People v. Reyes, 2016 IL 119271, ¶ 12 (per curiam) (vacating the defendant’s

sentence as unconstitutional and remanding to the trial court where, pursuant to

section 4 of the Statute on Statutes, the defendant was entitled to be resentenced

under the new juvenile sentencing provisions).

¶ 55 Here, no dispute exists that defendants were sentenced well before the new

juvenile sentencing provisions, including subsection (b), became effective on

January 1, 2016. 5 Further, defendants make no claim that error occurred in the trial

court that would require vacatur of their sentences and remand for resentencing,

thus giving them the option to be sentenced under subsection (b).

¶ 56 Defendants’ sole argument against applying the second sentence of section 4 in

the present case is that subsection (b) of the new statute does not mitigate

punishment. We disagree. To “mitigate” means “to make less severe.” Webster’s

Third New International Dictionary 1447 (1993); see Black’s Law Dictionary 1154

(10th ed. 2014). Subsection (b) provides that the trial court “may, in its discretion,

decline to impose any other applicable [firearm] sentencing enhancement.” 730

ILCS 5/5-4.5-105(b) (West 2016). Thus, in the case of Hunter, who was found

guilty of aggravated vehicular hijacking, aggravated kidnapping, and armed

robbery, all while armed with a firearm, application of subsection (b) would mean

5

Hunter was sentenced on May 29, 2014. Wilson was sentenced on May 2, 2014.

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that the low end of the sentencing range would be reduced from 21 years (the 6-year

minimum sentence for a Class X felony, plus the mandatory 15-year firearm

enhancement) to 6 years (the minimum unenhanced sentence for a Class X felony).

In the case of Wilson, who was found guilty of attempted first degree murder where

he personally discharged a firearm that proximately caused great bodily harm,

application of subsection (b) would mean that the low end of the sentencing range

would be reduced from 31 years (the 6-year minimum sentence for a Class X

felony, plus the mandatory 25-year minimum firearm enhancement) to 6 years (the

minimum unenhanced sentence for a Class X felony). We conclude that subsection

(b) of the new juvenile sentencing provisions mitigates punishment because the

potential sentence is “less severe” than under the prior sentencing scheme.

Accordingly, defendants are not eligible to be sentenced under subsection (b). The

appellate court came to the correct conclusions, but for the wrong reasons.

¶ 57 CONCLUSION

¶ 58 For the reasons discussed above, we affirm the judgments of the appellate

court.

¶ 59 Affirmed.

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