People v. Heinz

• Decision Date: 31 March 2011
• Docket Number: No. 2–07–0139.,2–07–0139.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Terry L. HEINZ, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 1016
946 N.E.2d 1087
349 Ill.Dec. 591

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Terry L. HEINZ, Defendant–Appellant.

No. 2–07–0139.

Appellate Court of Illinois, Second District.

March 31, 2011.

[946 N.E.2d 1088]

Patricia Unsinn (Court-appointed), Deborah K. Pugh (Court-appointed), Pamela Z. O'Shea (Court-appointed), Office of the State Appellate Defender, Chicago, for Terry L. Heinz.John A. Barsanti, Kane County State's Attorney, Lawrence M. Bauer, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, for People of the State of Illinois.

[349 Ill.Dec. 592 , 407 Ill.App.3d 1017] OPINION Justice McLAREN delivered the judgment of the court, with opinion.

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.

[407 Ill.App.3d 1018] On appeal, defendant argued 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

[349 Ill.Dec. 593 , 946 N.E.2d 1089]

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 was entitled to a credit for three days' time served in custody prior to sentencing. We initially vacated the conviction of, and sentence for, theft, concluding that under the charging instrument approach enunciated in People v. Baldwin, 199 Ill.2d 1, 7, 262 Ill.Dec. 9, 764 N.E.2d 1126 (2002), theft was a lesser included offense of burglary. We also vacated the order of restitution and remanded the cause for a hearing on the amount of actual damages, and we corrected the mittimus to reflect three days' credit for time served. People v. Heinz, 391 Ill.App.3d 854, 331 Ill.Dec. 201, 910 N.E.2d 610 (2009). The Illinois Supreme Court issued a supervisory order on November 24, 2010, which directed us to vacate our order and reconsider our decision in light of People v. Miller, 238 Ill.2d 161, 345 Ill.Dec. 59, 938 N.E.2d 498 (2010). People v. Heinz, 238 Ill.2d 662, 345 Ill.Dec. 78, 938 N.E.2d 517 (2010) (table). We now affirm defendant's convictions and sentences for burglary and theft, vacate the restitution order, and remand the cause for a hearing on the actual damages. Additionally, we order the mittimus corrected to reflect three days' credit for time served. We also grant the motion of the State to assess the $50 statutory assessment as costs of the appeal.

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 [407 Ill.App.3d 1019] 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.

[946 N.E.2d 1090 , 349 Ill.Dec. 594]

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, [407 Ill.App.3d 1020] 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

[349 Ill.Dec. 595 , 946 N.E.2d 1091]

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...