City of Chicago v. Roman

• Decision Date: 17 December 1998
• Docket Number: No. 84268,84268
• Parties: , 235 Ill.Dec. 468 The CITY OF CHICAGO, Appellee, v. Edwin ROMAN, Appellant.
• Court: Illinois Supreme Court

Page 81

705 N.E.2d 81

184 Ill.2d 504, 235 Ill.Dec. 468

The CITY OF CHICAGO, Appellee, v. Edwin ROMAN, Appellant.

No. 84268.

Supreme Court of Illinois.

Dec. 17, 1998.

[184 Ill.2d 505] [235 Ill.Dec. 470] Lester Finkle, Assistant Public Defender, Chicago, for Edwin Roman.

Timothy W. Joranko, Assistant Corporation Counsel, Chicago, for City of Chicago.

Beth Anne Janicki, Illinois Municipal League, Springfield, for Illinois Municipal League.

Chief Justice FREEMAN delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Edwin Roman, was convicted of the Chicago municipal offense of assault against the elderly. Chicago

                [235 Ill.Dec. 471] Municipal Code § 8-4-080 (1990).  The circuit court imposed a sentence that was less than the mandatory minimum sentence prescribed by the ordinance.  The City appealed.  The appellate court reversed and remanded for resentencing consistent with the ordinance.  292 Ill.App.3d 546, 226 Ill.Dec. 512, 685 N.E.2d 967.   We allowed defendant's petition for leave to appeal (155 Ill.2d R. 315) and now affirm the appellate court
                

BACKGROUND

The City's evidence at trial was essentially as follows. On August 23, 1994, Anthony Pupius (also spelled "Puprus" in the record) was 60 years old. On that day, he and a visitor, Violeta Valaityte, saw a rental truck enter an alley (also referred to as an "unpaved street" in the record) near his home in Chicago. They came out from his house, and saw defendant and Ricardo Diaz removing packing material, i.e., cardboard cartons and styrofoam, and dumping it in the alley.

Pupius approached defendant and told him to stop dumping garbage. Using abusive language, defendant told Pupius that what they were doing was none of his business, and that he should leave.

Pupius returned to his house and telephoned "911." He went back to the alley with a camera and took pictures of defendant. When defendant saw Pupius photographing him, he, according to Pupius, "became very violent." Defendant, while swearing at Pupius, picked up a stick or tree branch approximately four feet long and two fingers wide and tried to hit Pupius, who was standing four or five feet away from defendant.

Pupius, fearful that defendant would hit him with the stick, backed away from defendant and retreated into his house. He again telephoned "911." During this time, defendant returned some of the packing material to the truck. Pupius again came outside with his camera, hoping to take more pictures. By then, defendant had backed the truck around to the front of Pupius' house. The truck stopped as Pupius approached. Defendant and Diaz exited the truck. Defendant approached Pupius, who was backing off; Diaz stood by the truck. Defendant swore at and threatened Pupius, saying that defendant knew what Pupius looked like and where he lived.

Eventually, defendant and Diaz reentered the truck and drove approximately one block down the street, where they stopped and rearranged their cargo. Chicago police arrived, spoke with Pupius, and then stopped defendant and Diaz.

Defendant and Diaz were arrested and charged with dumping garbage in violation of section 221b of the Criminal Jurisprudence Act (740 ILCS 55/221b (West 1992)). Defendant was also charged with assault against the elderly, i.e., Pupius, in violation of section 8-4-080 of the Municipal Code of Chicago. Chicago Municipal Code § 8-4-080 (1990).

The defense case was essentially as follows. Defendant and Diaz were delivering home furnishings for Harlem Furniture. They made a delivery on Pupius' street. Defendant admitted placing the packing material in the alley. However, he intended to cut it down in size, return it to the truck, and rearrange it with the remaining furniture. Harlem Furniture was paid for returning and recycling the packaging.

After defendant had put the packing material in the alley, and as he was getting his utility knife, Pupius came out of his house with a camera and accused defendant of dumping garbage. Defendant approached Pupius to explain his actions, but Pupius warned defendant that if he touched Pupius, defendant would be arrested.

Defendant told Diaz that Pupius was acting crazy, and that they should quickly reload the truck with the packing material. They would do their cutting in front of the customer's house. As they began driving, Pupius jumped in front of the truck. Defendant admitted that he exited the truck and exchanged words with Pupius. However, defendant denied ever threatening Pupius either verbally or with a stick.

At the close of the evidence, the circuit court found defendant and Diaz not guilty of garbage dumping, but found defendant guilty of assault against the elderly.

The circuit court subsequently denied defendant's motion to reconsider the finding of guilty on the assault charge. Also, the court denied defendant's motion to declare Chicago Municipal Code section 8-4-080 unconstitutional in its entirety. However, the court ruled that the mandatory minimum sentence that the ordinance prescribes-imprisonment for 90 days-exceeds the City's home rule authority. At the close of the sentencing hearing, the circuit court sentenced defendant to 10 days of community service and to one year of probation.

The City appealed. After finding jurisdiction, the appellate court reversed the judgment of the circuit court and remanded the cause for resentencing. The appellate court initially determined that it had jurisdiction to hear the City's appeal. 292 Ill.App.3d at 550, 226 Ill.Dec. 512, 685 N.E.2d 967. Addressing the merits, the appellate court concluded that (1) it was within the City's constitutional powers as a home rule unit to have a sentencing scheme different from that of the state, and (2) state law does not prevent or restrict the City from prescribing mandatory imprisonment as a penalty in the ordinance. 292 Ill.App.3d at 550-53, 226 Ill.Dec. 512, 685 N.E.2d 967.

Defendant appeals to this court. We note that we allowed the Illinois Municipal League leave to file an amicus curiae brief in support of the City (155 Ill.2d R. 345).

DISCUSSION

I. Preliminary Matters

Prior to reaching the merits, we must first determine whether: (A) the appellate court had jurisdiction to hear the City's appeal from defendant's sentence, and (B) the appeal placed defendant in double jeopardy.

A. The City's Appeal

Defendant first contends that the appellate court lacked jurisdiction to hear the City's appeal from his sentence. He argues that a municipality lacks the authority to appeal from a sentence imposed on a criminal ordinance violation.

Defendant invokes Supreme Court Rule 604(a)(1) as a bar to the City's appeal. That rule provides in pertinent part:

"(a) Appeals by the State.

(1) When State May Appeal. In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge * * *; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence." 145 Ill.2d R. 604(a)(1).

See People v. DeJesus, 127 Ill.2d 486, 494-96, 130 Ill.Dec. 471, 537 N.E.2d 800 (1989). This rule does not allow the State to contest the propriety of a sentence imposed on a criminal defendant. People v. Hatfield, 257 Ill.App.3d 707, 711, 196 Ill.Dec. 528, 630 N.E.2d 463 (1994); People v. Davilla, 236 Ill.App.3d 367, 389, 177 Ill.Dec. 596, 603 N.E.2d 666 (1992).

This case, however, involves a void judgment. A void judgment is one entered by a court that lacks, inter alia, the inherent power to make or enter the particular order involved. A void judgment may be attacked at any time, either directly or collaterally. People v. Wade, 116 Ill.2d 1, 5, 107 Ill.Dec. 63, 506 N.E.2d 954 (1987).

In Illinois, a trial court, upon determination of guilt, must impose the criminal penalties that the legislature mandated, and has no authority to impose punishment other than that provided by statute. The court exceeds its authority if it orders a lesser sentence than what the statute mandates. Wade, 116 Ill.2d at 6, 107 Ill.Dec. 63, 506 N.E.2d 954.

In the present case, section 8-4-080 mandates a minimum term of imprisonment of 90 days. The circuit court sentenced defendant to 10 days of community service and to one year of probation. Thus, defendant's sentence was illegal and void. Consequently, "the appellate court had the authority to correct it at any time [citation], and the actions of the appellate court were not barred by our rules which limit the State's right to appeal." People v. Arna, 168 Ill.2d 107, 113, 212 Ill.Dec. 963, 658 N.E.2d 445 (1995).

B. Double Jeopardy

Incidental to the question of whether the City can appeal defendant's sentence is the question of whether the constitutional prohibition of double jeopardy (U.S. Const., amends. V, XIV; Ill. Const.1970, art. I, § 10) bars a new sentencing hearing for defendant. Defendant and the City agree that double jeopardy principles apply to municipal ordinance prosecutions where imprisonment is the penalty. See Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

We conclude that this appeal does not present a double jeopardy problem. We have previously concluded that defendant's sentence was illegal and void.

It is settled that "[t]here is no double jeopardy prohibition against resentencing a defendant to correct an illegal sentence. [Citations.] Double jeopardy rights are not implicated even if the correction of the illegal sentence increases the punishment." People v. Woolsey, 278 Ill.App.3d 708, 710, 215 Ill.Dec. 520, 663 N.E.2d 763 (1996); accord United States v. DiFrancesco, 449 U.S. 117, 132-38, 101 S.Ct. 426, 434-38, 66 L.Ed.2d 328, 342-46 (1980); Bozza v. United States, 330 U.S. 160, 166-67, 67 S.Ct. 645, 648-49, 91 L.Ed. 818, 821-22 (1947).

Defendant attempts to avoid these...