THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONTEA CALHOUN, Defendant-Appellant, 377 Ill. App. 3d 662

PRESIDING JUSTICE QUINN delivered the opinion of the court: Defendant Leontea Calhoun entered a plea of guilty to two counts of reckless homicide and was subsequently sentenced to concurrent terms of 20 years’ imprisonment. On appeal, defendant contends that the circuit court violated his due process rights by failing to provide him with the opportunity to choose to be sentenced under the statute in effect at the time of the offense or the law in effect at the time of sentencing.

BACKGROUND Defendant was charged by indictment with four counts of reckless homicide and two counts of felony aggravated driving under the influence. On April 4, 2005, the circuit court conducted a plea hearing where defendant indicated his desire to plead guilty to two counts of reckless homicide. He further indicated that he understood that no agreement had been made with the State regarding a sentencing recommendation or with the court as to what sentence would be imposed.

During the plea proceedings, the court admonished defendant that reckless homicide was a Class 2 felony, punishable by a penitentiary sentence within the range of 6 to 28 years and a 2-year period of mandatory supervised release. The court then admonished defendant pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402). The factual basis for defendant’s plea showed that about 3:35 a.m. on December 28, 2002, defendant was driving a vehicle with a blood alcohol content of 0.268, three times above the legal limit.

Defendant ran a red light at the intersection of 111th Street and Ridgeland Avenue and struck the vehicle occupied by Noell and Nicole Cahill, causing their deaths. The court determined that defendant’s plea was made knowingly and voluntarily and that the factual basis supported the plea; then it entered findings of guilty on the two offenses and continued the case for sentencing. On November 16, 2005, the court sentenced defendant to concurrent terms of 20 years’ imprisonment.

Defendant subsequently filed a motion to reconsider his sentence, arguing that it was excessive and that the circuit court failed to adequately consider the mitigating evidence. The court denied the motion. ANALYSIS In this appeal, defendant first contends that his cause should be remanded for a new sentencing hearing because the circuit court violated his due process rights by failing to inform him of his right to choose to be sentenced under the law in effect at the time the offense was committed or the law in effect at the time of sentencing.

Defendant acknowledges that he failed to raise this issue in his written posttrial motion to reconsider his sentence, but he argues that we should review the issue as “plain error” and because the error resulted from the ineffective assistance of his plea counsel. In the context of a sentencing hearing, a reviewing court may consider a forfeited error under the plain error doctrine when the evidence is closely balanced or the error is so fundamental that it may have deprived the defendant a fair sentencing hearing. People v. Hall, 195 Ill. 2d 1, 18 (2000); People v. Thomas, 178 Ill. 2d 215, 251 (1997).

For the reasons to follow, we do not find this to be such a case. A defendant is “entitled to be sentenced under either the law in effect at the time of the offense or the law in effect at the time of sentencing.” People v. Hollins, 51 Ill. 2d 68, 71 (1972). A defendant’s due process rights are violated if he is not advised of his right to elect the statute under which he should be sentenced and he does not expressly waive that right.

Hollins, 51 Ill. 2d at 71. “[Where] any punishment is mitigated by the provisions of a new law, a defendant can consent to the application of the new provision if it became effective prior to his sentencing.” People v. Land, 178 Ill. App. 3d 251, 260 (1988). If, however, the newly enacted statute changes the nature or substantive elements of an existing offense, rather than merely reducing the applicable punishment, defendant is not entitled to choose the statute under which he may be sentenced and may be convicted and sentenced under the law in effect at the time the offense was perpetrated. People v.

Martinez, 371 Ill. App. 3d 363, 371 (2007), citing Land, 178 Ill. App. 3d at 260-61. On the date of the offense (December 28, 2002) in this case,

section 9 — 3 of the Criminal Code of 1961 classified reckless homicide as a Class 3 felony, punishable by two to five years’ imprisonment. 720 ILCS 5/9 — 3(d)(2) (West 2000). In addition,

section 9 — 3(

e) of the Criminal Code stated that in cases involving reckless homicide in which the defendant was determined to have been under the influence of alcohol or drugs as an element of the offense, the offense was a Class 2 felony, for which a person, if sentenced to imprisonment, shall be sentenced to a term of not less than 3 years nor more than 14 years. 720 ILCS 5/9 — 3(e) (West 2000). On July 18, 2003, approximately 2V2 years prior to the date of sentencing, the Illinois General Assembly amended

section 9 — 3 of the Criminal Code to reflect that reckless homicide generally remained a Class 3 felony punishable by two to five years’ imprisonment. 720 ILCS 5/9 — 3(d)(2) (West 2004). Under Public Act 93 — 213 (Pub. Act 93 — 213, eff. July 18, 2003),

section 9 — 3(e), which previously had raised reckless homicide involving driving under the influence of alcohol or drugs from a Class 3 to a Class 2 felony, punishable by 3 to 14 years’ imprisonment, was eliminated. Based on that development, defendant contends that he was prejudiced by the court’s failure to advise him that he had the right to choose between the two sentencing options where he received a sentence that was four times greater than the maximum sentence permitted under the law at the time of sentencing. This same argument was raised and rejected by this court in Martinez, 371 Ill.

App. 3d at 374-75. In Martinez, 371 Ill. App. 3d at 373-74, this court recognized the general entitlement of defendant to be sentenced under the law in effect at the time of the offense or at the time of sentencing, but found that the substantive changes made to the reckless homicide statute under Public Act 93 — 213 precluded that option. We also found that the Act repealed parts of

section 9 — 3 of the Criminal Code (720 ILCS 5/9—3(d)(2) (West 2000)), which affected the nature and substance of the reckless homicide statute, and noted that the General Assembly had created a new category of offense under the driving-under-the-influence statute replacing the provisions eliminated from the reckless homicide statute by the Act (see 625 ILCS 5/11—501(d) (West 2004)). Martinez, 371 Ill. App. 3d at 374.

We also concluded that the General Assembly did not intend the punishment to be less stringent for those who drive under the influence of alcohol or drugs and cause death and, accordingly, that defendant was not entitled to take advantage of the more favorable sentencing provisions created by the Act. Martinez, 371 Ill. App. 3d at 374. The same result was obtained in People v. Lush, 372 Ill. App. 3d 629, 637-38 (2007), where the Fourth District agreed with the holding and reasoning set forth in Martinez.

In that case, defendant raised the same due process issue, and the court determined that because Public Act 93 — 213 resulted in substantive changes to the reckless-homicide statute, defendant was not entitled to elect to be sentenced under

section 9 — 3(d)(2) of the Criminal Code (720 ILCS 5/9—3(d)(2) (West 2004)), the more favorable reckless-homicide sentencing provision created by Public Act 93 — 213. Lush, 372 Ill. App. 3d at 638. We find no reason to depart from the reasoning or conclusion drawn in Martinez or Lush and likewise find that, based on the substantive changes made to the reckless homicide statute, defendant was not entitled to choose under which statute he would like to be sentenced. Martinez, 371 Ill. App. 3d at 375. We thus find no error by the circuit court to invoke the exception to the waiver rule.

Thomas, 178 Ill. 2d at 251-52. Defendant further claims that this court should not impute waiver to his sentencing claim because his trial counsel was ineffective for failing to ensure his ability to exercise his legal right to be sentenced under the law in effect at the time of sentencing and for failing to preserve this issue in the motion to reconsider his sentence. The State responds that because defendant was not entitled to be sentenced under the law in place at the time of sentencing, his counsel was not ineffective for not informing him of the alleged claim or raising it in the postplea motion.

To prevail on a claim of ineffective assistance of counsel, defendant must show that his attorney’s performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Where defendant fails to make the requisite showing under either prong of this test, his claim is defeated. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994).

To show prejudice, defendant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings likely would have been different. People v. Manning, 334 Ill. App. 3d 882, 892 (2002). As noted above, the substantive nature of the changes made by Public Act 93 — 213 to the Criminal Code precluded defendant from choosing the statute under which he would be sentenced.

Therefore, counsel was not remiss in failing to tell defendant that he had such a sentencing option, and defendant cannot establish prejudice from counsel’s failure to include this issue in his motion to reconsider his sentence. Defendant, therefore, cannot meet either prong of the Strickland test to establish his claim of ineffective assistance of trial counsel. CONCLUSION For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. Affirmed. MURPHY, J., concurs.