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Docket No. 85986-Agenda 7-May 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BRANDON WHITNEY, Appellee.

Opinion filed October 21, 1999.

JUSTICE BILANDIC delivered the opinion of the court:

Defendant, Brandon Whitney, was tried in the circuit court of Cook County on two counts of first degree murder (720 ILCS5/9-1(a)(1), (a)(2) (West 1994)) and one count of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West1994)). The State's evidence established that on June 13, 1994, defendant and Lewis Dejan were shooting at a car leavingthe student parking lot of Morgan Park High School in Chicago, Illinois. That car was driven by Aaron Holmes withTheodore Macklin seated in the front passenger seat. At one point during the shooting, defendant reached into the carthrough the open window and fired multiple shots at its two occupants. As a result of the shooting, Aaron Holmes died ofmultiple gunshot wounds. Theodore Macklin suffered no injuries. Following a jury trial, defendant was found guilty of thefirst degree murder of Aaron Holmes and the aggravated discharge of a firearm with respect to Theodore Macklin. The trialcourt sentenced defendant to 50 years' imprisonment for the first degree murder conviction and 15 years' imprisonment forthe aggravated discharge of a firearm conviction, with the sentences to run consecutively.

Defendant appealed to the appellate court challenging his sentences on the basis that (1) the trial court erred in ordering hissentences to run consecutively, rather than concurrently; (2) the trial court improperly considered an alleged priorconviction in aggravation when sentencing defendant; and (3) the lengths of his sentences reflect an abuse of discretion bythe trial court. The appellate court remanded for a new sentencing hearing with directions that defendant serve his twosentences concurrently. 297 Ill. App. 3d 965.

Regarding the first issue, the appellate court noted that section 5-8-4(a) of the Unified Code of Corrections (730 ILCS5/5-8-4(a) (West 1994)) mandates the imposition of consecutive sentences where offenses are committed as part of a singlecourse of conduct and one of those offenses is a Class X or Class 1 felony and the defendant inflicted severe bodily injury.The appellate court found that defendant committed first degree murder and aggravated discharge of a firearm whileengaged in a single course of conduct. The appellate court further found that first degree murder is not a Class X or Class 1felony, but that aggravated discharge of a firearm is a Class 1 felony under the facts of this case. Nonetheless, the appellatecourt determined that consecutive sentences were not warranted under section 5-8-4(a) because the Class 1 felony ofaggravated discharge of a firearm did not result in severe bodily injury to the victim of that crime, Theodore Macklin, whowas not injured in the shooting. The appellate court refused to combine the severe bodily injury suffered by Aaron Holmes,who was murdered, with the Class 1 felony of the aggravated discharge of a firearm so as to trigger consecutive sentencesunder section 5-8-4(a).

The appellate court next addressed the trial court's consideration of defendant's alleged prior burglary conviction as a factorin aggravation at sentencing. The appellate court determined that the trial court had relied improperly upon a prior burglaryconviction in sentencing defendant because defendant had no such prior conviction. The appellate court found that therecord was not sufficient to determine whether the weight placed upon defendant's nonexistent prior conviction wassignificant. The appellate court thus remanded the cause to the trial court for it to determine whether the alleged priorconviction affected the length of the sentences imposed on defendant.

As a final matter, the appellate court determined that defendant's sentences for first degree murder and aggravated dischargeof a firearm were both within applicable statutory limits.

We allowed the State's petition for leave to appeal, which raises only the issue relating to consecutive sentences. 177 Ill. 2dR. 315. The State does not challenge the appellate court's holding with respect to the trial court's improper consideration atsentencing of a nonexistent prior conviction. For the reasons that follow, we affirm the judgment of the appellate court.

ANALYSIS

We must decide whether defendant was subject to consecutive sentences under section 5-8-4(a) of the Illinois UnifiedCode of Corrections (730 ILCS 5/5-8-4(a) (West 1994)). Section 5-8-4(a) provides in pertinent part:

"The court shall not impose consecutive sentences for offenses which were committed as part of a single course ofconduct during which there was no substantial change in the nature of the criminal objective, unless, one of theoffenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodilyinjury, or where the defendant was convicted of a violation of Section 12-13 [criminal sexual assault] or 12-14[aggravated criminal sexual assault] of the Criminal Code of 1961, in which event the court shall enter sentences torun consecutively." 730 ILCS 5/5-8-4(a) (West 1994).

The State argues that the appellate court's construction of section 5-8-4(a) in this case is contrary to the plain meaning ofthe statute's language. The State contends that the statute is clear and not ambiguous. The State further contends that theplain language of the statute demonstrates that the legislature intended to impose consecutive sentences whenever adefendant commits multiple offenses in a single course of conduct, in which at least one of the offenses is a Class X orClass 1 felony, and where the defendant has inflicted severe bodily injury on at least one of the victims. According to theState, the trial court properly imposed consecutive sentences on defendant pursuant to section 5-8-4(a) because defendantcommitted two offenses during a single course of conduct, one of which was the Class 1 felony of aggravated discharge of afirearm, and inflicted severe bodily injury to Aaron Holmes.

Defendant responds that the plain language of section 5-8-4(a) indicates that a Class X or Class 1 felony is a triggeringoffense for mandatory consecutive sentences only when the infliction of the severe bodily harm occurred in the commissionof that Class X or Class 1 felony, or was proximately related to that felony. Defendant argues that he should not be subjectto consecutive sentences under section 5-8-4(a) because, although he was convicted of a Class 1 felony, that felony did notresult in the infliction of severe bodily injury to the victim of that felony, namely, Theodore Macklin.

The issue in this appeal, therefore, is whether the Class X or Class 1 felony must involve the infliction of severe bodilyinjury to the victim of that felony to trigger mandatory consecutive sentences under section 5-8-4(a). Our appellate court isdivided over this issue. The First and Second Districts have held that the severe bodily injury requirement of section5-8-4(a) must be proximately connected to the Class X or Class 1 felony for it to be a triggering offense. People v.Medrano, 282 Ill. App. 3d 887, 896-97 (1st Dist. 1996); People v. Toliver, 251 Ill. App. 3d 1092, 1099-1100 (2d Dist.1993). The Third District, however, has held that section 5-8-4(a)'s severe bodily injury requirement does not have to beinflicted as part of the triggering felony. People v. Syverson, 293 Ill. App. 3d 199, 204 (3d Dist. 1997).

Our court has previously examined the general application of section 5-8-4(a). We have held that section 5-8-4(a)provides for two separate and distinct exceptions to the general prohibition against consecutive sentences for offensesarising out of a single course of conduct. People v. Wittenmyer, 151 Ill. 2d 175, 195-96 (1992). The first exception is that,where one of the offenses for which the defendant was convicted was a Class X or Class 1 felony and the defendantinflicted severe bodily injury, the imposition of consecutive sentences is mandatory. Wittenmyer, 151 Ill. 2d at 195. Thesecond exception is that, where the defendant was convicted of criminal sexual assault or aggravated criminal sexual assault (720 ILCS 5/12-13, 12-14 (West 1994)), the imposition of consecutive sentences is mandatory. Wittenmyer, 151 Ill. 2d at195-96. This court has also determined that section 5-8-4(a)'s application is limited to those instances where the offensesare committed in a single course of conduct (People v. Bole, 155 Ill. 2d 188, 198 (1993) (rejecting the State's argument thatsection 5-8-4(a) applies regardless of whether the offenses were committed in a single course of conduct)), and that trialcourts are required to impose consecutive sentences when the statutory criteria are satisfied (People v. Arna, 168 Ill. 2d 107,113 (1995) (holding that a sentence that fails to comply with the mandatory provisions of section 5-8-4(a) is void and maybe corrected at any time)). Moreover, this court has held that consecutive sentences are mandatory only for those offenseswhich trigger the application of section 5-8-4(a), and that the consecutive sentences imposed for triggering offenses mustbe served prior to, and independent of, any sentences imposed for nontriggering offenses. People v. Curry, 178 Ill. 2d 509,538-39 (1997). Despite our prior considerations of section 5-8-4(a), this court has not addressed the precise issue before usin this appeal.

We are called upon here to interpret the meaning of the first exception under section 5-8-4(a). Well-established principlesof statutory construction assist our resolution of the issue presented in this appeal. The primary rule of statutoryconstruction is to ascertain and give effect to the intent of the legislature. People v. Hickman, 163 Ill. 2d 250, 261 (1994);People v. Zaremba, 158 Ill. 2d 36, 40 (1994). The language of a statute is the best means of determining legislative intent.Hickman, 163 Ill. 2d at 261; Zaremba, 158 Ill. 2d at 40. The statutory language should be given its plain and ordinarymeaning. People v. Robinson, 172 Ill. 2d 452, 457 (1996). Where statutory language is clear and not ambiguous, its plainmeaning will be given effect. Hickman, 163 Ill. 2d at 261; Zaremba, 158 Ill. 2d at 40. Where statutory language isambiguous, however, a court may consider other extrinsic aids for construction, including legislative history, to resolve theambiguity and determine legislative intent. Hickman, 163 Ill. 2d at 261; Zaremba, 158 Ill. 2d at 40. Moreover, penal statutesare strictly construed in favor of the defendant as a general matter. Robinson, 172 Ill. 2d at 461; People v. Brooks, 158 Ill.2d 260, 264 (1994). Any ambiguity in a penal statute should be construed and resolved in favor of the defendant. Robinson,172 Ill. 2d at 457; People v. Alejos, 97 Ill. 2d 502, 512 (1983). Because the construction of a statute is a question of law, thestandard of review is de novo. Robinson, 172 Ill. 2d at 457.

Applying these principles, we find that the first exception is ambiguous because it is susceptible to two equally reasonableand conflicting interpretations. Both the interpretation advanced by the State and the interpretation advanced by defendantare reasonable. As noted by the State, there is no specific reference tying the requirement of severe bodily injury to theClass X or Class 1 felony. Nonetheless, it is reasonable to associate the severe bodily injury with the Class X or Class 1felony given its inclusion in the same exception. Accordingly, the plain language does not clearly reveal the legislativeintent. Furthermore, the legislative history regarding section 5-8-4(a) is of no assistance in clarifying the intent of thelegislature in enacting the first exception. Any references in the legislative debates to section 5-8-4(a) and the imposition ofconsecutive sentences are limited to explaining in general terms the subject nature of the proposed legislation. In light of theambiguous nature of the first exception under section 5-8-4(a) and the lack of insight from the legislative history, we mustinterpret section 5-8-4(a) in favor of the defendant. Consequently, we construe the first exception under section 5-8-4(a)as requiring consecutive sentencing where the defendant has been convicted of either a Class X or Class 1 felony and wherehe had inflicted severe bodily injury during the commission of that felony. Accordingly, to the extent that People v.Syverson, 293 Ill. App. 3d 199 (1997), conflicts with this decision, it is hereby overruled.

We reject the State's contention that this interpretation of section 5-8-4(a) leads to an absurd result because only thoseClass X or Class 1 felonies in which severe bodily injury is an inherent factor will qualify as triggering offenses. First, wedisagree that only Class X or Class 1 felonies where severe bodily injury is an inherent factor trigger consecutive sentencesunder section 5-8-4(a). Instead, any Class X or Class 1 felony that results in severe bodily injury being inflicted on thevictim of that felony triggers consecutive sentences. Moreover, the circumstances in which consecutive sentences aremandatory are exceptions to the general rule prohibiting such sentences when offenses are committed as part of a singlecourse of conduct. It is therefore reasonable to limit the application of the first exception set forth in section 5-8-4(a) tocases where there is a Class X or Class 1 felony involving the infliction of severe bodily injury.

We next apply our interpretation of section 5-8-4(a) to defendant in this case. Here, defendant was convicted of the firstdegree murder of Aaron Holmes and the aggravated discharge of a firearm with respect to Theodore Macklin. There is nodispute that defendant committed these crimes as part of a single course of conduct during which there was no substantialchange in the nature of the criminal objective. Consequently, defendant is subject to consecutive sentences only if either ofthe exceptions set forth in section 5-8-4(a) are applicable. Obviously, the second exception under section 5-8-4(a) does notapply because defendant was not convicted of the enumerated crimes, namely criminal sexual assault or aggravated criminalsexual assault. At issue is whether the first exception applies so as to require mandatory consecutive sentencing. Firstdegree murder is not a Class X or Class 1 felony; rather, it is its own class of felony. 730 ILCS 5/5-5-1(b) (West 1994).Aggravated discharge of a firearm is a Class 1 felony. 720 ILCS 5/24-1.2(a)(2), (b) (West 1994). Defendant's conduct,however, in committing the offense of aggravated discharge of a firearm did not result in severe bodily injury to the victimof that felony, Theodore Macklin. We therefore hold that the requirements for the first exception under section 5-8-4(a)have not been satisfied. Consequently, consecutive sentences are not warranted in this case. Rather, defendant was subjectonly to concurrent sentences for first degree murder and aggravated discharge of a firearm.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the appellate court in remanding for a new sentencing hearingand ordering the trial court to impose concurrent sentences.

Affirmed.

JUSTICE HEIPLE, dissenting:

Section 5-8-4(a) of the Unified Code of Corrections authorizes consecutive sentences for offenses which are committed aspart of a single course of conduct if "one of the offenses for which defendant was convicted was a Class X or Class 1 felonyand the defendant inflicted severe bodily injury." 730 ILCS 5/5-8-4(a) (West 1994). Defendant was convicted of firstdegree murder and aggravated discharge of a firearm for firing a gun into a car, killing the driver but leaving the passengeruninjured. The trial court imposed consecutive sentences for these offenses because defendant committed a Class 1 felony(aggravated discharge of a firearm) and inflicted severe bodily injury (the shooting of the driver) during a single course ofconduct. The majority holds that consecutive sentences are improper in this case because the severe bodily injury did notresult directly from the aggravated discharge of a firearm, which is the only Class X or Class 1 felony for which defendantwas convicted.⁽¹⁾ Section 5-8-4(a), however, imposes no such requirement. Therefore, I respectfully dissent.

Even the majority admits that the requirement it reads into section 5-8-4(a) does not exist. The majority concedes that"there is no specific reference [in section 5-8-4(a)] tying the requirement of severe bodily injury to the Class X or Class 1felony." Slip op. at 5-6. The majority's holding rests solely on the specious proposition that section 5-8-4(a) is ambiguousand, therefore, must be construed in favor of defendant. The majority states that section 5-8-4(a) is ambiguous because

"[b]oth the interpretation advanced by the State and the interpretation advanced by defendant are reasonable. Asnoted by the State, there is no specific reference tying the requirement of severe bodily injury to the Class X or Class1 felony. Nonetheless, it is reasonable to associate the severe bodily injury with the Class X or Class 1 felony givenits inclusion in the same exception." (Emphasis added.) Slip op. at 5-6.

Of course it is "reasonable" to associate the severe bodily injury and Class X or Class 1 felony. They are both part of thesame exception authorizing consecutive sentences. What is patently unreasonable (and illegitimate) is the majority'sdecision to impose an additional requirement that the severe bodily injury must result directly from the commission of theClass X or Class 1 felony.

The language of section 5-8-4(a) could not be any clearer. The plain language of section 5-8-4(a) requires only that adefendant commit either a Class X or Class 1 felony and inflict severe bodily injury during the same single course ofconduct. Had the legislature intended to require that severe bodily injury result directly from the commission of the Class Xor Class 1 felony, it would have included such a requirement in the statute.

The majority's confused statutory construction is understandable because it is clear that the majority's analysis is guided bywhat it believes is "reasonable" rather than what the language of the statute actually says. This court has no authority torewrite statutes to make them consistent with its own idea of reasonableness and sound public policy. See Henrich v.Libertyville High School, 186 Ill. 2d 381, 395 (1998). Such responsibility lies solely with the legislature.

1. ¹First degree murder is neither a Class X nor Class 1 felony. See 730 ILCS 5/5-5-1(b) (West 1994).