People v. Heinz

Decision Date01 June 2009
Docket NumberNo. 2-07-0139.,2-07-0139.
Citation391 Ill. App. 3d 854,910 N.E.2d 610
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry L. HEINZ, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Justice McLAREN delivered the opinion of the court:

Following a bench trial, defendant, Terry L. Heinz, was convicted of burglary (720 ILCS 5/19-1(a) (West 2004)) and theft (720 ILCS 5/16-1 (a)(1)(A) (West 2004)). Based on defendant's prior felony convictions, the trial court found him subject to Class X sentencing (730 ILCS 5/5-5-3(c)(8) (West 2004)). Defendant was sentenced to concurrent terms of 10 years' imprisonment for the burglary conviction and 5 years' imprisonment for the theft conviction, and he was ordered to pay $7,000 in restitution.

On appeal, defendant argues that: (1) his conviction of and sentence for theft must be vacated because theft is a lesser included offense of burglary; (2) his sentencing hearing was unfair because the trial court erroneously found that no statutory factors in mitigation applied; (3) the trial court improperly ordered restitution in the amount of $7,000; and (4) the mittimus should be corrected because he is entitled to a credit for three days' time served in custody prior to sentencing. For the reasons that follow, we vacate the conviction of and sentence for theft; vacate the order of restitution and remand for a hearing on the amount of actual damages; and correct the mittimus to reflect three days' credit for time served.

I. BACKGROUND

On March 23, 2005, defendant was indicted for the offenses of burglary (720 ILCS 5/19-1(a) (West 2004)) and theft of property having a value in excess of $300 (720 ILCS 5/16-1(a)(1)(A) (West 2004)). Specifically, the burglary indictment alleged that "defendant without authority, knowingly entered a building of Liberty Lanes, located at 115 Meadowdale Drive, Carpentersville, Kane County, Illinois, with the intent to commit therein a theft." The indictment for theft alleged that "defendant knowingly exerted unauthorized control over property of Liberty Lanes being United States currency having a total value in excess of $300.00 intending to deprive Liberty Lanes permanently of the use of the property."

At trial, Cheryl Mikolitis, owner of Liberty Lanes bowling alley in Carpentersville, testified that she was at work at the bowling alley on the evening of October 11, 2004. She left around 10:30 p.m. Her employees, Kevin Miller and Steve Tuman, remained to clean up and close for the night. When she arrived at the bowling alley on the morning of October 12, she discovered that her office door was open and the door frame was damaged. A safe containing approximately $2,400 in cash and $300 in checks was missing, as well as two boxes containing 20 cartons of cigarettes.

Kevin Miller testified that he was the assistant manager of the bowling alley. His duties included closing after all the customers had left. This entailed counting the receipts, checking the building and doors, and, on October 11, supervising Steve Tuman, who was filling in for a regular employee. Miller stated that, during the evening of October 11, Matt Peters and his wife, Ellen, sat at the bar for a while, watching him work. Miller had been introduced to them a few days earlier. They left around 10 p.m.

Miller stated that around midnight defendant came inside to use the bathroom after the bowling alley was closed. Defendant was waiting for Steve Tuman to give him a ride home. After defendant left, Miller checked the building and then went home.

Steve Tuman testified pursuant to an agreement with the State. He had known defendant for about 12 years; in October 2004 defendant was living in his basement. He stated that, about two months prior to October, he had discussed burglarizing Liberty Lanes with defendant and with Matt and Ellen Peters. According to Tuman, the burglary was defendant's idea. Tuman said that Matt and defendant approached him because he worked at the bowling alley. Tuman's role in the burglary was to let Matt in through the back door. The plan was for Matt to hide inside while Tuman completed his chores for the night. Then Tuman was to leave with Kevin Miller after they finished their work. Tuman testified that, even though there was money in the cash registers, their plan was to steal only two safes. Matt was supposed to take the safes to the back door and then wait for help. Defendant was to act as lookout from the parking lot.

Tuman further testified that, on the night of the burglary, Matt and Ellen Peters arrived at the bowling alley around 6 p.m. and sat at the bar. They left around 10:30 p.m., when the bowling alley closed. Tuman testified that Matt then went around to the back of the building and Tuman let him in. Matt hid inside the bowling alley, above the mechanic's room. Defendant came to the door and asked to be let in to use the bathroom, which was not part of the plan. After defendant left, Tuman and Miller finished closing and left at the same time. Tuman got into defendant's car; Ellen was already there. By radio, defendant told Matt that everything was clear. Tuman then went to the back door of the building and helped Matt remove one safe, which they put in Matt's truck. The plan was to steal another safe, but it was too heavy. Matt also stole about 20 cartons of cigarettes. Tuman testified that he and Matt drove Matt's truck to Tuman's house. Defendant and Ellen followed in defendant's car. At Tuman's house, defendant cut open the safe, which contained keys, tapes, checks, and $1,000 in cash. Tuman testified that he and Matt then drove to McHenry County to dispose of the safe; afterward they met defendant and Ellen at a truck stop where they split up the cigarettes and defendant counted and distributed the cash.

Detective Todd Shaver of the Carpentersville police department investigated the burglary. He spoke to Cheryl Mikolitis and her husband, and to Steve Tuman, who was then held for investigation. He also interviewed Matt Peters at the McHenry County jail. After that he called defendant, who agreed to come to the police station.

The next day, defendant arrived with Ellen Peters. Shaver talked to her first. Shaver then advised defendant of his Miranda rights. Defendant signed a waiver of his rights and gave a statement. Shaver testified that defendant initially told him that on the night of the burglary he picked up Steve Tuman at work and drove him home to Woodstock. After Shaver told defendant that Steve Tuman and Matt and Ellen Peters had implicated him in the burglary, defendant said that Ellen was with him when he picked up Tuman from the bowling alley around midnight. Defendant said that they drove to a gas station and then returned to Liberty Lanes, where they dropped Tuman off at the rear of the building. Defendant and Ellen then parked in a parking lot across from the bowling alley and used a two-way radio to talk to Tuman. Defendant told Shaver that Matt Peters and Tuman came out of the building carrying a small safe, which they loaded into the back of Matt Peters' truck. They all drove to Tuman's house in Woodstock, where the safe was opened by Matt Peters and Tuman. The cash that was inside the safe was divided among the three men. Defendant said that he received $411. Defendant told Shaver that he did not go inside the building and that his only involvement in the incident was with the two-way radio.

Defendant testified on his own behalf. He stated that in October 2004 he was living in Tuman's basement. On the night of October 11, Tuman called him around 10:30 p.m., asking for a ride home from work. Defendant arrived at the bowling alley just before midnight and asked Kevin Miller to let him in the building to use the restroom. Defendant testified that as he returned to his car he saw Ellen in the parking lot. She got into defendant's car. Shortly thereafter, Tuman and Miller came out of the bowling alley. Tuman entered defendant's car and told him to go to a nearby gas station. At the gas station Tuman told defendant they had to go back to get Matt Peters. Defendant parked across the street from the bowling alley. As Tuman got out of the car, he threw his two-way radio phone onto the seat and ran across the field toward the bowling alley.

Defendant testified that he and Ellen stayed in the car. After about 10 minutes Tuman called on the radio phone and said, "I'm ready to go, are you ready?" Defendant replied, "I guess so." Defendant followed Matt Peters' truck to Tuman's house. After they arrived at Tuman's house, defendant saw Matt Peters and Tuman sitting in the garage with a safe. Defendant testified that he then left with Ellen, and he denied cutting the safe open.

Defendant was convicted of burglary and theft. In its ruling the trial court stated:

"He is legally accountable. He is guilty of burglary. I find him guilty of burglary.

He is also guilty of Count 2, theft. It is not a lesser included offense.

Now, I believe that only one of these two convictions can stand under the one-act one-crime rule; however, I will today enter judgments on both, and I will hear any arguments that either side wishes to make in that regard at a future date."

At the sentencing hearing, the State conceded that statutory mitigating factors numbers one and two applied to defendant (730 ILCS 5/5-5-3.1(a)(1), (a)(2) (West 2004)). The State asked for restitution, relying on an unnotarized document signed by a "James Mikolaitis [sic]" that claimed losses of approximately $7,000. The items "damaged, lost or stolen" were listed as follows:

"$2850 CASH—18-20 CARTONS CIGS [sic] ($720.00)

($130.00) 10 CASES BEER—SAFE WORTH $800.00—BACK-UP TAPES COMPUTER

2 BEER PUMPS—TOOLS ($100.00) 6-DOORS (REPAIR + REPLACE) $2200.00

SAFE INSTALLED $800.00

TOTAL ABOUT $7000.00"

This list was handwritten on a letter from the State's Attorney's office, addressed to "Liberty Lanes c/o Cheryl Mikolaitis [sic]." The letter...

To continue reading

Request your trial
11 cases
  • People v. Pace, 1–11–0415.
    • United States
    • United States Appellate Court of Illinois
    • September 11, 2015
    ...refuse to consider relevant evidence presented in mitigation.’ ” Id. at 386, 343 Ill.Dec. 655, 935 N.E.2d 663 (quoting People v. Heinz, 391 Ill.App.3d 854, 865 (2009)). ¶ 92 Though sentencing courts may not disregard mitigating evidence, they retain discretion to assign how much weight it c......
  • People of The State of Ill. v. CALHOUN
    • United States
    • United States Appellate Court of Illinois
    • September 10, 2010
    ...than directory,” and the “sentencing authority may not refuse to consider relevant evidence presented in mitigation.” People v. Heinz, 391 Ill.App.3d 854, 865, 331 Ill.Dec. 201, 910 N.E.2d 610 (2009). [18] [19] [20] While the term “strong provocation” is not defined in the Unified Code of C......
  • People v. Limon, 2–09–0058.
    • United States
    • United States Appellate Court of Illinois
    • November 30, 2010
    ...error is so fundamental and of such magnitude that the accused was denied a right to a fair trial.” (Emphasis added.) People v. Heinz, 391 Ill.App.3d 854, 859, 331 Ill.Dec. 201, 910 N.E.2d 610 (2009). We are no less able review such an error here, where defendant properly preserved the issu......
  • People v. Woodard, 2-17-0053
    • United States
    • United States Appellate Court of Illinois
    • August 2, 2019
    ...consider relevant evidence presented in mitigation' " (People v. Calhoun, 404 Ill. App. 3d 362, 386 (2010) (quoting People v. Heinz, 391 Ill. App. 3d 854, 865 (2009)), it "has no obligation to recite and assign value to each factor presented at a sentencing hearing" (People v. Hill, 408 Ill......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT