People v. Blanks, No. 1-02-0161 (Ill. App. 3/15/2004)
| Decision Date | 15 March 2004 |
| Docket Number | No. 1-02-0161.,1-02-0161. |
| Court | United States Appellate Court of Illinois |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DERRICK BLANKS, Defendant-Appellant. |
Appeal from the Circuit Court of Cook County, No. 00 CR 22705, Shelley Sutker-Dermer, Judge Presiding.
Following a bench trial, defendant was found guilty of aggravated battery against Randall Blackburn and the burglary of David Demulemeester's home. He was sentenced to six concurrent years' imprisonment. On appeal, defendant asks: (1) whether his burglary conviction should be reversed because the amendment to the residential burglary statute including burglary as a lesser offense of residential burglary was not effective until after his conviction; (2) whether he was proved guilty beyond a reasonable doubt of committing aggravated battery with a "deadly weapon" to wit, a club, which was approximately 30 inches long and 2 inches thick and the injuries sustained by Blackburn were not consistent with "great bodily harm"; and (3) whether he must be resentenced because the mandatory Class X sentencing statute and the extended-term sentencing statute violate his right to due process and trial by jury by increasing the maximum sentence without notice or a jury finding upon proof beyond a reasonable doubt of the facts qualifying him for sentences beyond the prescribed sentencing range, pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
For the reasons set forth below, we affirm.
Defendant was charged with residential burglary (720 ILCS 5/19-3 (West 2000)) of David Demulemeester's home on the afternoon of September 7, 2000. Defendant was also charged with aggravated battery against Harold DeLeo and Randall Blackburn while using a deadly weapon, "a club." See 720 ILCS 5/12-4(b)(1) (West 2000). Two additional counts charged that the aggravated batteries occurred while on or about a public way. See 720 ILCS 5/12-4(b) (8) (West 2000).
Homeowner David Demulemeester testified at trial that on September 7, 2000, although he was having his house "remodeled," he was still living in and occupying the house. Workers had been remodeling the home for approximately five months prior to the September 7 unauthorized entry. Demulemeester further testified that none of his property was missing from his home after defendant's unauthorized entry.
Harold DeLeo testified at defendant's bench trial that on September 7, 2000, he was completing remodeling work on the home of David Demulemeester. The doors of the home were not locked because workers were bringing materials and tools in and out. At approximately 2:30 p.m., DeLeo saw defendant in the front room picking up tools off of the floor. DeLeo testified that defendant is not a construction worker with his company. DeLeo ran toward defendant and told him to stop. They began fighting and defendant dropped the tools and tried to get out of the house. The struggle moved to the outdoor front porch, and DeLeo noticed his company phone in defendant's pocket. Eventually, DeLeo took the phone from defendant. Defendant ran away. When defendant returned to the client's home, DeLeo saw defendant holding a "stick" that was "[t]wo inches by two inches by approximately forty-two inches." DeLeo testified that defendant was swinging the stick "pretty wildly." Eventually, DeLeo took the stick from defendant.
Randall Blackburn testified that he observed defendant picking up tools inside the house. Blackburn and DeLeo told defendant to leave. Blackburn, DeLeo and defendant went outside. Blackburn and defendant fought outside. Then defendant ran down the street. About two minutes later, defendant returned, running toward him "with a stick." Blackburn described the "stick" as a "[t]wo by two Wolmanized water-treated spindle for a railing." Defendant hit Blackburn in the forehead. The blow rolled Blackburn back, but he did not fall. Blackburn also testified that he suffered a scratch on his right forearm. Pictures of his head and forearm were identified at trial and are in the record. Blackburn stated that the picture did not accurately reflect the injury to his head because his hair concealed the swelling.
Officer Jessie Avila, one of the arresting officers, testified that Blackburn only reported the first incident, which started inside the house, and being hit with a stick. Blackburn did not report that after the initial altercation, defendant returned to the scene some time later and hit Blackburn with a stick. The property inventory report completed by Officer Avila described the weapon used as a "2 x 2 stick approx. 30 inches in length."
The State rested its case and defendant moved for directed finding on counts IV and V (aggravated battery in a public way). Defendant was found not guilty of counts IV and V. Following argument, defendant was also found not guilty of count II (aggravated battery with a deadly weapon against DeLeo). Counts I and III, residential burglary and aggravated battery against Blackburn, remained.
In defendant's case in chief, the parties stipulated that on September 8, 2000, defendant was hospitalized and treated for a collapsed lung. The defense then rested its case in chief.
The court stated that it was "not convinced beyond a reasonable doubt that a residential burglary occurred." In finding defendant guilty of burglary and aggravated battery, the court reasoned: "I'm finding him guilty of the lesser included of burglary because of the situation of the house and the way it was under construction and the fact that there were workmen there." Moreover, the court noted that defendant was discovered taking the property of the construction company, not the homeowner. In fact, the homeowner testified that none of his personal property was missing after defendant's unlawful entry. The court also held that the "stick" was a deadly weapon for purposes of the aggravated battery conviction.
Defendant moved for a new trial, arguing that at the time of the offense, burglary was specifically not a lesser-included offense of residential burglary and that the amendment to the residential burglary statute, which became effective on June 1, 2001, some eight months subsequent to the offense, was not retroactive. He further contended that the State failed to prove that the "stick" used was a deadly weapon pursuant to section 12-4 of the Criminal Code of 1961 (720 ILCS 5/12-4(b) (1) (West 2000)). The State responded that the legislative intent of the statutes at the time of defendant's offense was to include burglary as a lesser offense of residential burglary. The State also argued that based on the court's interpretation of the evidence that the home was not being used as a residence at the time but, rather, as a work site, defendant could be found guilty of burglary. The trial court reasoned that because the amendment was a procedural change and not a substantive one, it could be applied retroactively and it was, therefore, proper to find defendant guilty of burglary. Defendant's motion for a new trial was denied.
At sentencing, the court found that defendant was eligible for mandatory Class X sentencing on the burglary conviction1 and found him eligible for an extended-term sentence for the aggravated battery conviction2. Based on his criminal history, defendant was sentenced to an extended-term of six years for aggravated battery and a concurrent term of six years for burglary. Defendant now appeals his burglary conviction and aggravated battery conviction, and challenges the constitutionality of the Class X and extended-term sentences.
Defendant in the case sub judice was found guilty of burglary, instead of the charged offense of residential burglary, "because of the situation of the house and the way it was under construction." Defendant contends that his conviction must be reversed because he could not be found guilty of burglary where the unauthorized entry was to a dwelling place and burglary and residential burglary were mutually exclusive offenses at the time of the offense. See 720 ILCS 5/19-3(a), 19-1(a) (West 2000). Moreover, he maintains that, contrary to the trial court's ruling, the amendment to the residential burglary statute, which now includes burglary as a lesser-included offense, was a substantive change that could not be applied retroactively. The State contends that the trial court was correct in holding that the amendment to the statute did not make a substantive change in the law, in that the elements of neither residential burglary nor burglary changed as a result of the amendment. We agree with the State and affirm defendant's burglary conviction for the reasons that follow.
In matters of statutory interpretation, the appropriate standard of review is de novo. People v. Swift, 202 Ill. 2d 378, 385, 781 N.E.2d 292 (2002). When construing a statute, a court's primary objective is to ascertain and give effect to the legislature's intent. People v. O'Brien, 197 Ill. 2d 88, 90, 754 N.E.2d 327 (2001). Our inquiry always must begin with the language of the statute, which is the most reliable indicator of legislative intent. People v. Pullen, 192 Ill. 2d 36, 42, 733 N.E.2d 1235 (2000). Where a statute is unambiguous, a court must give it effect as written without reading into it exceptions, limitations, or conditions that the legislature did not express. People v. Rivera, 198 Ill. 2d 364, 371, 763 N.E.2d 306 (2001).
Generally, an amendment to a statute will be construed to apply prospectively and not retroactively. Rivard v. Chicago Fire Fighters Union Local No. 2, 122 Ill. 2d 303, 309, 522 N.E.2d 1195 (1988). The long-standing rule is that the prospective application of statutes is to be preferred to retroactive application because of the fundamental principle of jurisprudence that the retroactive application of new laws is usually...
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