946 N.E.2d 1087 (Ill.App. 2 Dist. 2011), 2-07-0139, People v. Heinz

Docket Nº:2-07-0139.
Citation:946 N.E.2d 1087, 407 Ill.App.3d 1016, 349 Ill.Dec. 591
Opinion Judge:McLAREN, Justice.
Party Name:The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terry L. HEINZ, Defendant-Appellant.
Attorney: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 Appe...
Judge Panel:Justices ZENOFF and SCHOSTOK concurred in the judgment and opinion.
Case Date:March 31, 2011
Court:Court of Appeals of Illinois
 
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Page 1087

946 N.E.2d 1087 (Ill.App. 2 Dist. 2011)

407 Ill.App.3d 1016, 349 Ill.Dec. 591

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.

Terry L. HEINZ, Defendant-Appellant.

No. 2-07-0139.

Court of Appeal of Illinois, Second District.

March 31, 2011

Page 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] OPINION

McLAREN, Justice.

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 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]

Page 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 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.

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[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...

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