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SECOND DIVISION
August 22, 2000

(NUNC PRO TUNC June 27, 2000)

No. 1-98-2422

JUSTICE McBRIDE delivered the opinion of the court:

Following a bench trial, defendant Bashir Jihad Baaree wasfound guilty of the class 1 felony offense of possession of acontrolled substance with intent to deliver. The trial courtsentenced defendant to a six-year prison term after finding he wassubject to mandatory class X sentencing pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections. Defendant appeals,challenging the constitutionality of section 5-5-3(c)(8) andarguing, in the alternative, that he should not have been sentencedas a class X offender under the terms of that section.

Defendant was arrested on July 4, 1997, and charged with twodifferent offenses related to his alleged possession of cocaine. He was 20 years old at the time of his arrest. On April 20, 1998,following a bench trial, defendant was found guilty of possessionof a controlled substance with intent to deliver, a class 1 felony. 720 ILCS 570/401(c)(2) (West 1998). Four days later, on April 24,1998, defendant turned 21.

Defendant was sentenced on May 22, 1998. At the sentencinghearing, the court determined that, because of his prior criminalhistory, defendant was subject to a mandatory class X sentencepursuant to section 5-5-3(c)(8) of the Unified Code of Corrections. 730 ILCS 5-5-3(c)(8) (West 1998). Section 5-5-3(c)(8) provides, inrelevant part, that:

"When a defendant, over the age of 21 years,is convicted of a Class 1 or Class 2 felony,after having twice been convicted of any Class2 or greater Class felonies in Illinois, andsuch charges are separately brought and triedand arise out of different series of acts,such defendant shall be sentenced as a Class Xoffender." 730 ILCS 5/5-5-3(c)(8) (West1998).

The trial court then sentenced defendant to a six-year prison term,the minimum class X sentence.

Defendant now appeals, arguing that, for various reasons, heshould not have been subject to class X sentencing under section 5-5-3(c)(8). 730 ILCS 5-5-3(c)(8) (West 1998).

Defendant acknowledges that his trial attorney failed topreserve the sentencing issues raised on appeal in a written motionto reconsider defendant's sentence. However, pursuant to SupremeCourt Rule 615(a), plain errors or defects affecting substantialrights may be addressed on review even where they were not broughtto the attention of the trial court. 134 Ill.2d R. 615(a). Sentencing issues are regarded as matters affecting a defendant'ssubstantial rights and are thus excepted from the doctrine ofwaiver. People v. Burrage, 269 Ill. App. 3d 67, 71, 645 N.E.2d 455(1994). Nor does waiver apply where the constitutionality of astatute is being challenged. People v. Carter, 228 Ill. App. 3d526, 532, 592 N.E.2d 491 (1992). The State chose not to argue thatthe issues raised on appeal were waived. We agree with defendantthat the issues raised have not been waived and we will thusconsider the merits of his arguments.

We first address defendant's contention that the term"convicted" in section 5-5-3(c)(8) can be construed as referring tothe time at which the court determined his guilt rather than thetime at which sentence was imposed. At the very least, defendantargues, the term "convicted," as used in the statute, is ambiguous. Here, defendant turned 21 between the time the trial courtentered a finding of guilty and the time he was sentenced. The keypart of section 5-5-3(c)(8) for our purposes is the section statingthat the statute applies when "a defendant, over the age of 21years, is convicted of a Class 1 or Class 2 felony." Under a plainreading of the statute, it appears that a defendant's age at thetime of conviction is the deciding factor in determining whetherthe statute will apply. It is therefore necessary to determinewhat is meant by the term "convicted."

The term "conviction" or "convicted" is susceptible to morethan one meaning, and its meaning will thus vary according to thecontext in which it appears and the purpose to which it relates. People ex rel. Grogan v. Lisinski, 113 Ill. App. 3d 276, 279, 281,446 N.E.2d 1251 (1983). The Unified Code of Corrections definesconviction as "a judgment of conviction or sentence entered upon aplea of guilty or upon a verdict or finding of guilty of an offenserendered by a legally constituted jury or by a court of competentjurisdiction authorized to try the case without a jury." 730 ILCS5/5-1-5 (West 1998).

The State maintains that a finding of guilty is only anelement of a conviction and that a conviction is not formallyrendered until a sentence is imposed. Such an interpretation findssupport in caselaw. See, e.g., People v. Woods, 306 Ill. App. 3d1144, 1147, 715 N.E.2d 1218 (1999) ("The final judgment in acriminal case is the imposition of sentence, which is a necessarypart of a complete judgment of guilt, without which a judgment ofconviction is not final"), appeal allowed, 186 Ill. 2d 588, 723N.E.2d 1169 (1999); People v. Robinson, 91 Ill. App. 3d 1128, 1130,414 N.E.2d 1335 (1980) (holding that the date of conviction is thedate the sentencing order is entered), aff'd, 89 Ill. 2d 469, 433N.E.2d 674 (1982).

There is contrary authority, however. Section 5-1-5 statesthat a conviction means a "judgment of conviction or sentence." 730 ILCS 5/5-1-5 (West 1998) (emphasis added). The plain languageof the definition in section 5-1-5 itself thus suggests that aconviction may occur at some point prior to sentencing. Similarly,section 5-1-19 of the Code of Corrections, which defines a sentenceto be the "disposition imposed by the court on a convicteddefendant," also suggests that a conviction may occur prior tosentencing. 730 ILCS 5/5-1-19 (West 1998).

Further support for such an interpretation can be found inIllinois caselaw. In People v. Franklin, 135 Ill. 2d 78, 106-07,522 N.E.2d 743 (1990), the Illinois Supreme Court held that thedefendant was eligible for the death penalty under a provisionwhich required a defendant to have been convicted of murdering twoor more individuals where he had been found guilty of, and thus"convicted" of, two murders even though he had not yet beensentenced for one of the murders. The court, in so finding,applied principles of statutory construction to determine that theterms "judgment of conviction" and "sentence" as used in section 5-1-5 are distinct concepts and must be viewed separately. Franklin,135 Ill. 2d at 106. The State acknowledges that the supreme court,in Franklin and in other death penalty cases, has departed from adefinition of conviction as requiring the imposition of a sentence. The State asserts, however, that the supreme court has departedfrom the view that a conviction requires a sentence only in deathpenalty jurisprudence. We disagree. In People v. Medrano, 282Ill. App. 3d 887, 890, 669 N.E.2d 114 (1996), for instance, thiscourt, in a non-death penalty case, addressed the question of whatconstitutes a "conviction": a verdict of guilty, pronouncement ofjudgment, or the imposition of a sentence. The court concludedthat "[w]hile imposition of a sentence completes the judgment andmakes it final for purposes of an appeal, a judgment of convictionis rendered once the trial court adjudicates a defendant guilty." Medrano, 282 Ill. App. 3d at 891. See also People v. Goetz, 27Ill. App. 3d 680, 682, 327 N.E.2d 516 (1975) (holding that areference to a "conviction" in section 5-5-3(a), was not simply tothe entry of a record judgment of conviction but was to adetermination of guilt); People v. Spears, 83 Ill. App. 2d 18, 25-26, 226 N.E.2d 67 (1967) ("The term conviction means the finding ofguilty by court or jury and an adjudication of that fact").

The above citations to cases favoring either side merelydemonstrate that the term convicted, as used in the Code ofCorrections and elsewhere, is susceptible to multipleinterpretations. It is unclear from section 5-5-3(c)(8) whether a"conviction," as used in the statute, occurs upon a defendant'sbeing found guilty or upon the imposition of a sentence. Moreover,the context in which the term is used in the statute does not favorone meaning over the other. We therefore find the term"convicted," as used in section 5-5-3(c)(8), to be ambiguous in thecontext of this case. Criminal or penal statutes are to bestrictly construed in favor of an accused. People ex rel. Gibsonv. Cannon, 65 Ill. 2d 366, 370-71, 357 N.E.2d 1180 (1976). Wherea statute creating or increasing a penalty or punishment is capableof two constructions, the construction favoring the accused is tobe adopted. Cannon, 65 Ill. 2d at 371. Therefore, we find thatdefendant was convicted for purposes of section 5-5-3(c)(8) when hewas adjudicated guilty by the trial court. Because defendant was20 years of age at that time, section 5-5-3(c)(8), by its terms,would not apply to him.

Having resolved this matter on grounds unrelated todefendant's constitutional claims, it is unnecessary for us toaddress those claims. See County of Kankakee v. Anthony, 304 Ill.App. 3d 1040, 1049, 710 N.E.2d 1242 (1999).

The trial court erred in finding that defendant was subject tomandatory class X sentencing. We therefore remand this case sothat defendant can be resentenced to a class 1 felony sentence.

Reversed and remanded.

COUSINS, P.J., and McNULTY, J., concur.