                                                           NO. 5-06-0507
                        N O T IC E

 Decision filed 09/16/08. The text of
                                                              IN THE
 this dec ision m ay b e changed or

 corrected prior to the              filing of a
                                                   APPELLATE COURT OF ILLINOIS
 P e t i ti o n   for     Re hea ring   or   the

 disposition of the same.
                             FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                     ) Circuit Court of
  Plaintiff-Appellee,                ) Shelby County.
                                       )
v.                                     ) No. 03-CF-98
                                       )
PAMELA WILLIAMSON,                     ) Honorable
                                       ) David W. Slater,
  Defendant-Appellant.                 ) Judge, presiding.
________________________________________________________________________

                  JUSTICE WELCH delivered the opinion of the court:

                  On July 22, 2003, the defendant, Pamela Williamson, was charged under the Illinois

Controlled Substances Act (720 ILCS 570/100 et seq. (West 2002)) with the unlawful

manufacture of more than 400 but less than 900 grams of a substance containing

methamphetamine, a Class X felony punishable by a term of imprisonment of between 12

and 50 years (720 ILCS 570/401 (West 2002)). Following a jury trial in the circuit court of

Shelby County, the defendant was found guilty, and on June 16, 2004, she was sentenced to

a term of imprisonment of 15 years. Her motions for a sentence reduction and for a new trial

were denied, and on February 28, 2005, the defendant filed a notice of appeal.

                  On September 11, 2005, while the defendant's direct appeal was pending, the

Methamphetamine Control and Community Protection Act (the Act) (720 ILCS 646/1 et seq.

(West 2006)) became law. The Act removed the control of methamphetamine from the

Illinois Controlled Substances Act, established new offenses relating to methamphetamine,

and contained new sentencing provisions for those offenses. It specifically provides as

follows:


                                                                1
              "Applicability. A prosecution for any violation of law occurring prior to the

       effective date of this Act is not affected or abated by this Act. If the offense being

       prosecuted would be a violation of this Act[] and has not reached the sentencing stage

       or final adjudication, then for purposes of penalty the penalties under this Act apply

       if they are less than under the prior law upon which the prosecution was commenced."

       720 ILCS 646/105 (West 2006).

       In light of this provision of the Act, on June 16, 2006, the defendant filed a pro se

motion for resentencing under the Act. The motion argued that under the Act the defendant

would have been more appropriately prosecuted only for the newly created offenses of

possessing methamphetamine-manufacturing material (720 ILCS 646/30 (West 2006)) and/or

unlawful disposal of methamphetamine-manufacturing waste (720 ILCS 646/45 (West

2006)), both Class 2 felonies punishable by a term of imprisonment of three to seven years.

See 730 ILCS 5/5-8-1(a)(5) (West 2006). The motion argued that had the Act been in effect

at the time of her prosecution, the defendant might have been found not guilty of

manufacture, a Class X felony, but guilty of possessing methamphetamine-manufacturing

material and/or unlawful disposal of methamphetamine-manufacturing waste, both Class 2

felonies. Because the penalty for a Class 2 felony is less than the penalty she received for

her conviction of a Class X felony, the motion sought resentencing under the Act as provided

in section 105 (720 ILCS 646/105 (West 2006)).

       On August 30, 2006, the circuit court of Shelby County denied the defendant's motion

for resentencing under the Act for the following reasons:

              "1. The Motion for Resentencing is Denied. The Motion is untimely filed as

       the sentence was entered 6/22/04 [sic] and the Motion was filed 6/16/06.

              2. The Motion is based on a new offense being added to the Criminal Code

       which was not in existence on the date of the offense, the date of the trial, or the date


                                               2
       of the sentencing. The new offense was added to the Criminal Code with an effective

       date of 9/11/05. The Defendant now requests a new sentencing based on a new

       statute, not the one she was charged with, convicted of, and sentenced for.

              3. The Court is ruling on this motion without a hearing as the M otion is

       untimely[] and concerns an issue of law with no valid legal basis."

The defendant filed her notice of appeal on September 21, 2006. On March 6, 2007, the

defendant's conviction and sentence were affirmed on direct appeal. People v. Williamson,

No. 5-05-0112 (2007) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)).

We now affirm the denial of her motion for resentencing under the Act. Because the issue

on appeal involves only a question of law, the proper interpretation of the Act, our review

is de novo. See People v. Maggette, 195 Ill. 2d 336, 348 (2001).

       The defendant was charged under the Illinois Controlled Substances Act with the

unlawful manufacture of between 400 and 900 grams of methamphetamine. The sentence

provided under the Illinois Controlled Substances Act for this Class X felony was a term of

imprisonment between 12 and 50 years. 720 ILCS 570/401(a)(6.5)(C) (West 2002). The

defendant received a sentence of 15 years' imprisonment.

       The Act contains an identical offense, participation in methamphetamine

manufacturing, which is also classified as a Class X felony with a possible range of

imprisonment between 12 and 50 years. 720 ILCS 646/15(a)(2)(D) (West 2006).

       By its own terms, section 105 of the Act applies only if the penalties thereunder are

less than the penalties under the prior law upon which the prosecution was commenced. 720

ILCS 646/105 (West 2006). In the case of the manufacture of methamphetamine, the

penalties under the Illinois Controlled Substances Act and the Methamphetamine Control and

Community Protection Act are identical. Accordingly, the Methamphetamine Control and

Community Protection Act does not apply and the defendant was not entitled to, and would


                                             3
not benefit from, resentencing under that act. The circuit court did not err in denying the

defendant's motion for resentencing under that act.

       On appeal, the defendant attacks the circuit court's finding of untimeliness, arguing

that because her direct appeal was still pending, the motion for resentencing was timely

because her case had not yet reached "final adjudication." We need not decide this issue

because, in addition to finding that the defendant's motion was not timely filed, the circuit

court also found that it had no valid legal basis. Even if the defendant's motion for

resentencing is deemed timely, the resentencing provision of the Act does not apply where

the penalties under the Act are not lesser than those under the Illinois Controlled Substances

Act under which the prosecution was commenced.

       The defendant makes a speculative and specious argument that had the Act been in

effect at the time of her prosecution, she would have been prosecuted and found guilty only

of possessing methamphetamine-manufacturing material and/or unlawful disposal of

methamphetamine-manufacturing waste, and not of manufacturing methamphetamine. She

argues, "[T]he legislature's creation of these offenses and the Act's authorization of

retroactive application provide a window for defendant and others whose methamphetamine

convictions were not final when the Act became law[] to request resentencing to a lesser

sentence under Section 105." We note that a plain reading of section 105 does not lead to

the conclusion that the defendant is entitled to be sentenced for a lesser crime for which she

was neither prosecuted nor convicted just because that crime has been newly created by the

Act. To the contrary, section 105 clearly states, "A prosecution for any violation of law

occurring prior to the effective date of this Act is not affected or abated by this Act." 720

ILCS 646/105 (West 2006). By its own terms, section 105 applies only to the penalty to be

imposed for the prior conviction: "for purposes of penalty the penalties under this Act apply

if they are less than under the prior law upon which the prosecution was commenced."


                                              4
(Emphasis added.) 720 ILCS 646/105 (West 2006).

       The defendant does not argue that she was not proved guilty beyond a reasonable

doubt of the unlawful manufacture of between 400 and 900 grams of a substance containing

methamphetamine. A defendant is not entitled by section 105 to have her conviction reduced

to a lesser offense, one for which she was neither prosecuted nor convicted. Section 105

applies only to the penalty to be imposed to that prior conviction. Accordingly, we reject the

defendant's argument.

       The circuit court did not err in denying the defendant's motion for resentencing under

section 105 of the Act, and its order is hereby affirmed.



       Affirmed.



       DONOVAN and WEXSTTEN, JJ., concur.




                                              5
                                            NO. 5-06-0507

                                               IN THE

                                   APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
                                           ) Circuit Court of
        Plaintiff-Appellee,                ) Shelby County.
                                                       )
      v.                                               )   No. 03-CF-98
                                                       )
      PAMELA WILLIAMSON,                               )   Honorable
                                                       )   David W. Slater,
            Defendant-Appellant.                       )   Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        September 16, 2008
___________________________________________________________________________________

Justices:            Honorable Thomas M. Welch, J.

                 Honorable James K. Donovan, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Daniel M. Kirwan, Deputy Defender, Edwin J. Anderson, Assistant Defender, Office
for              of the State Appellate Defender, Fifth Judicial District, 117 North Tenth Street, Suite
Appellant        #300, Mt. Vernon, IL 62864
___________________________________________________________________________________

Attorneys        Honorable Alan Lolie, Shelby County State's Attorney, Shelby County Courthouse,
for              Shelbyville, IL 62565; Norbert J. Goetten, Director, Stephen E. Norris, Deputy
Appellee         Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate
                 Prosecutor, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL
                 62864
___________________________________________________________________________________
