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People v. Redmond4/18/2005
(9) the crime is a reckless homicide or a reckless homicide of an unborn child, as defined in Section 9-3 or 9-3.2 of the Criminal Code of 1961, in which the cause of death consists of the driving of a motor vehicle by a person under the influence of alcohol or any other drug or drugs at the time of the violation." 20 ILCS 301/40-5 (West 2002).
Under the plain language of the statute, defendant would be eligible for TASC probation. However, section 5-5-3(c)(8) of the Unified Code of Corrections states that defendant is not eligible for TASC probation because a Class X sentence is mandated. Section 5-5-3(c)(8) provides:
"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class felony and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second. A person sentenced as a Class X offender under this paragraph is not eligible to apply for treatment as a condition of probation as provided by Section 40-10 of the Alcoholism and Other Drug Abuse and Dependency Act." 730 ILCS 5/5-5-3(c)(8) (West 2002).
Defendant urges this court to interpret section 5-5-3(c)(8) to allow TASC eligibility prior to sentencing because the last sentence of the statute "excludes from election of treatment only that group of otherwise eligible offenders who provide the court with reason to believe they are addicts after being sentenced as Class X offenders." (Emphasis in original.) Defendant contends that section 5-5-3(c)(8) does not exclude him from TASC probation election because the court was aware of his drug problem prior to sentencing. However, defendant fails to acknowledge the mandatory effect of section 5-5-3(c)(8) which requires the trial court to sentence defendant as a Class X offender.
According to the presentence investigation, defendant has a 1991 conviction for robbery, a 1993 conviction for possession of a controlled substance with intent to deliver, and a 1999 conviction for burglary. All of defendant's prior convictions qualify as Class 2 or greater (see 720 ILCS 5/18-1(b) (West 1992) (robbery is a Class 2 felony); 720 ILCS 570/401(c) (West 1992) (possession of a controlled substance with intent to deliver is a Class 1 felony); 720 ILCS 5/19-1(b) (West 1998) (burglary is a Class 2 felony)); thus defendant must be sentenced as a Class X offender. The statutory language of section 5-5-3(c)(8) "expresses a clear legislative intent to enhance the punishment of certain offenders based entirely on objective, historical criteria, their record of criminal convictions, and places no limitations or restrictions on its application based on mental state or any other subjective matter." People v. Thomas, 171 Ill. 2d 207, 222 (1996). In Thomas, the supreme court held that the phrase "shall be sentenced as a Class X offender" has a mandatory meaning that precludes exceptions. Thomas, 171 Ill. 2d at 222. In making its holding, the court noted that it had repeatedly characterized section 5-5-3(c)(8) as mandatory. Thomas, 171 Ill. 2d at 222; see also Morrow v. Dixon, 108 Ill. 2d 223, 226-27 (1985) (imposition of sentence on defendant as Class X offender was mandated where trial court was aware of prior convictions satisfying section 5-5-3(c)(
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