December 13, 2001

JUSTICE HOLDRIDGE delivered the Opinion of the Court:

Modified Upon Denial
of Defendant's Petition for Rehearing

The defendant, Thomas S. Pomykala, was charged with twocounts of reckless homicide and one count of driving while hislicense was revoked. He pled guilty to the offense of drivingwhile his licence was revoked. After a jury trial, the defendantwas convicted of both counts of reckless homicide. The trialcourt vacated one count of reckless homicide and sentenced thedefendant to a term of 14 years imprisonment on the remainingcount. The trial court also ordered that 50% of defendant'smonthly income be withheld by the Department of Corrections to beremitted to the circuit clerk for application to costs. Onappeal, defendant maintains: (1) that the reckless homicidestatute and the accompanying jury instructions mandate apresumption of recklessness that relieves the State of its burdenof proving recklessness beyond a reasonable doubt; (2) that hewas denied a fair trial due to prosecutorial misconduct inopening statements and closing arguments; (3) that his sentenceof 14 years imprisonment was excessive; and (4) that the trialcourt lacked authority to order 50% of his income while in prisonbe turned over to the circuit clerk. We find that the recklesshomicide statute and the accompanying jury instructionsimpermissibly relieves the State of the burden of provingrecklessness beyond a reasonable doubt; we reverse and remand onthat basis.

The facts in the instant matter are, for the most part, notin dispute. On February 21, 1999, the defendant was driving hisbrown station wagon northbound on Larkin Avenue in Joliet,Illinois. The testimony of occurrence witnesses generally agreedthat the defendant's car went onto the median, then into thesouthbound lane of traffic, and then back into the northboundlane. The testimony also established that the car appeared tomaneuver so as to avoid hitting two cars. The car then enteredthe intersection of Larkin and McDonald, striking a car driven byBernadine Pirc, which had been traveling southbound on Larkin. Pirc's granddaughter, Taylor Pirc, who had been seated in thebackseat of Pirc's car, was killed. After hitting Pirc's car,the defendant struck a second car, traveled through a parking lotand came to a stop on McDonald.

Joliet police officer, James Schnura, responded to theincident. He testified to finding the defendant sitting on abench near his parked car. Officer Schnura testified to noticinga strong order of alcohol on the defendant's breath. Thedefendant told Officer Schnura that he had been having problemswith the brakes on his car. The defendant was transported to thepolice station where he failed a number of field sobriety tests. The defendant admitted to drinking "about 4 or 5 beers" that day. A subsequent intoxilizer test indicated that the defendant had abreath alcohol concentration level of .21 percent.

Officer Jeff Fornoff, also a Joliet police officer,testified that he took pictures of the incident scene. Aftertaking pictures, he looked inside the defendant's car and sawconstruction equipment, a bucket, a cooler, and approximately 18empty beer cans. One of the photographs taken by Officer Fornoffshowed a line of black liquid on the street running to a spotunder the engine of the defendant's car.

Chris Bene, the auto shop manager for Joliet CommunityCollege, testified regarding the condition of the defendant's carat the time of the incident. His examination concentrated on thebrakes. He testified that the brake fluid chamber was only 80%full of fluid. He also testified that the main battery feed forthe brake system was disconnected, and the hydrolic pressure forthe brake system was 175 p.s.i. rather than the normal level of500 - 700 p.s.i. Bene also noted that the main power feed fusefor the braking system was broken due to extensive corrosion. InBene's opinion, even if the brake system did not work properlyprior to the incident, the system would have still provided 30%assistance in braking and the car should have stopped when thebrake was applied, albeit with a reduced level of efficiency.

Following the State's case, the defendant made a motion fordirected verdict which was denied. The defendant then rested hiscase, and the matter proceeded to a conference regarding juryinstructions. At the conference, the State sought to tender thefollowing non-IPI jury instruction:

"If you find from your consideration ofall the evidence that the defendant was underthe influence of alcohol at the time of thealleged violation, such evidence shall bepresumed to be evidence of a reckless actunless disproved by evidence to thecontrary."

The defense objected to this instruction, but the trial courtoverruled that objection. After hearing closing arguments andbeing so instructed, the jury returned a verdict of guilty onboth counts of reckless homicide.

The defendant first maintains on appeal that the reckless-homicide statute under which he was convicted violates his rightto due process because it mandates that the jury presume anessential element of the offense -- recklessness. Specifically,the statute directs the jury that if the State proves that thedefendant was intoxicated, the jury must presume that thedefendant's acts were reckless unless the defendant can proveotherwise. 720 ILCS 5/9-3(b)(West 1999). The statute at issuereads:

"In cases involving reckless homicide, beingunder the influence of alcohol or any otherdrug or drugs at the time of the allegedviolation shall be presumed to be evidence ofa reckless act unless disproved by evidenceto the contrary." 720 ILCS 5/9-3(b)(West1999).

We agree with the defendant's claim that the statuteimpermissibly infringes upon his right to due process. The DueProcess Clause of the Fourteenth Amendment of the United StatesConstitution requires that the State prove a criminal defendantguilty of every element of an offense beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S.307 (1979). In establishing a defendant's guilt, the State may,in some instances, rely upon presumptions and inferences (UlsterCounty Court v. Allen, 442 U.S. 140 (1979)); however, suchpresumptions cannot relieve the state of its burden of provingeach element of the offense beyond a reasonable doubt. Sandstromv. Montana, 442 U.S. 510 (1979).

All presumptions are said to be of two types: permissive andmandatory. Sandstrom, 442 U.S. at 519. A permissivepresumption is one where the finder of fact is free to accept orreject the suggested presumption. Hester, 131 Ill. 2d at 94. Amandatory presumption is one in which the finder of fact mustpresume certain facts and is not free to reject the profferedpresumption. People v. Hester, 131 Ill. 2d 91 (1989). Oursupreme court has determined that all mandatory presumptionsviolate a defendant's due process rights under both the Illinoisand United States Constitutions. People v. Watts, 181 Ill. 2d133 (1998).

Here, we find the statute and jury instructions clearlyestablished a mandatory presumption. The jury was instructedthat evidence that the defendant was under the influence ofalcohol "shall be presumed" to be evidence of a reckless act.

This mandatory presumption compelled the jury to presume that thedefendant was acting recklessly when the incident occurred, thuseffectively removing the burden of proving that element from theState. At that point, the burden clearly shifted to thedefendant to prove that he was not acting recklessly. Such aburden shift to the defendant is always unconstitutional. Watts,181 Ill. 2d at 137. In finding that the statute and juryinstructions at issue constituted a mandatory presumption, wereject the State's contention that the phrase "shall be presumedevidence of a reckless act" negates the mandatory nature of thepresumption. Clearly, the phrase "shall be presumed"communicates the mandatory nature of the presumption and causesthe burden of proof to shift to the defendant.

We note that the trial court in the instant matter reliedupon our previous holding in People v. Atterberry, 213 Ill. App.3d 851 (1991). Atterberry held that as long as the mandatorypresumption was rebuttable, i.e., the defendant could place theissue in controversy by producing evidence to the contrary, theconstitutional right to due process was not violated. Atterberry, 213 Ill. App. 3d at 854. Atterberry was decidedseven years before Watts, where our supreme court held that allmandatory presumptions are unconstitutional. We hold thatAtterberry no longer reflects the current state of the law,having been effectively overruled by Watts. Accordingly, we mustvacate the defendant's conviction for reckless homicide andremand for a new trial.

The defendant raised other issues; however, since we areremanding this case for a new trial, it is not necessary toaddress those issues since they are moot.

On petition for rehearing, defendant asked that this courtvacate as void ab initio the portion of the order withholding 50%of his prison wages for payment of costs. An order for thepayment of costs by withholding from prison wages is void. People v. Despenza, 318 Ill. App. 3d 1155 (2001). Pursuant toDespenza, defendant is entitled to reimbursement of costscollected.

For the foregoing reasons, the judgment of the circuit courtof Will County is reversed and the matter is remanded for a newtrial. The circuit clerk is directed to reimburse defendant forcosts collected pursuant to the order of the circuit court.

Reversed and remanded with direction.

LYTTON, J., concurs.

MCDADE, J., specially concurs.

JUSTICE McDADE, specially concurring:

I concur in the decision of the majority to reverse andremand this matter for a new trial. I write separately toacknowledge what I believe to be the technical validity of theargument raised by the State and the reason why I do not think wecan adopt its reasoning.

It is well settled that a statute is presumed to beconstitutional, and that the party challenging it has the burdenof establishing its unconstitutionality. People v. Jung, 192Ill.2d 1, 733 N.E.2d 1256 (2000). It is also well settled that areviewing court has a duty to construe a statute in a manner thatupholds its constitutionality, if that can be reasonably done. People v. Fisher, 184 Ill. 2d 441, 705 N.E.2d 67 (1998). We are,therefore, taxed with the responsibility of construing thereckless homicide statute (720 ILCS 5/9-3(b) (West 1999)) asconstitutional if guidelines provided by the Supreme Courtpermit.

We are, however, also aware that our laws provide, andshould, therefore, clearly articulate, the standards by whichcitizens, attorneys, and the courts determine how to conformtheir personal and professional conduct to the requirements ofthe State. City of Chicago v. Morales, 177 Ill. 2d 440, 687N.E.2d 53 (1997). In the instant case, the statute provides: "In cases involving reckless homicide, beingunder the influence of alcohol or any otherdrug or drugs at the time of the allegedviolation shall be presumed to be evidence ofa reckless act unless disproved by evidenceto the contrary."

Plaintiff points out a distinction which is consistent withthe language of the statute. Specifically the State argues thatthe words "evidence of" take this case out of the category ofmandatory rebuttable presumptions which were found in People v.Watts, 181 Ill. 2d 133, 692 N.E.2d 315 (1998), to violate the dueprocess guarantees in the state and federal constitutions.

According to the State, the inclusion of the two words "evidenceof," together with the word "shall," creates only a mandatorypresumption that being under the influence of alcohol or drugs issome evidence of recklessness, not that being under the influenceconstitutes recklessness in and of itself.

I think we could, consistent with our duty to find aconstitutional interpretation of the statute, appropriatelyaccept the construction advanced by the State. But I also thinkthat to do so requires a technical exercise of linguistic parsingthat ill serves those -- here trial court judges and jurors --who should be able to rely on the statute to determine theirdecisional obligations.

Accordingly, I concur in the decision.