People v. Lowe

• Decision Date: 19 November 1992
• Docket Number: 73100,Nos. 73054,s. 73054
• Citation: 180 Ill.Dec. 90,606 N.E.2d 1167,153 Ill.2d 195
• Parties: , 180 Ill.Dec. 90 The PEOPLE of the State of Illinois, Appellee, v. Judith Renee LOWE, Appellant. The PEOPLE of the State of Illinois, Appellee, v. Richard NASSER, Appellant.
• Court: Illinois Supreme Court

Page 1167

606 N.E.2d 1167

153 Ill.2d 195, 180 Ill.Dec. 90

The PEOPLE of the State of Illinois, Appellee, v. Judith Renee LOWE, Appellant.

The PEOPLE of the State of Illinois, Appellee, v. Richard NASSER, Appellant.

Nos. 73054, 73100.

Supreme Court of Illinois.

Nov. 19, 1992.

Daniel D. Yuhas, Deputy Defender and Jeffrey D. Foust, Asst. Defender, Office of the State Appellate Defender, Springfield, for Richard Nasser in No. 73100.

Roland W. Burris, Atty. Gen., Springfield (Rosalyn B. Kaplan Sol. Gen. and Terence M. Madsen and Thomas L. Ciecko, Asst Attys. Gen., Chicago, of counsel) for the People in No. 73100.

Daniel D. Yuhas, Deputy Defender, and Fourth Judicial District, Gloria A. Morris, Asst. Defender, of the Office of the State Appellate Defender, Springfield, for Judith Renee Lowe in No. 73054.

Roland W. Burris, Atty. Gen., Springfield (Rosalyn B. Kaplan, Sol. Gen. and Terence M. Madsen, and Thomas Thomas L. Ciecko, Asst. Attys. Gen., Chicago, of counsel), for the People in No. 73054.

Justice MORAN delivered the opinion of the court:

After a September 1990 bench trial, defendant Judith Renee Lowe was convicted of theft of property having a value in excess of $300 (Ill.Rev.Stat.1989, ch. 38, pars. 16-1(a)(4)(A), (b)(4)). The court sentenced Lowe to 30 months of probation, conditioned upon her restitution of $2,925 to the trucking company which had employed her. Lowe appealed the restitution order, and the appellate court (No. 4-91-0337 (unpublished order under Supreme Court Rule 23)) affirmed.

After a bench trial in 1990, the court found defendant Richard Nasser guilty of arson (Ill.Rev.Stat.1989, ch. 38, par. 20-1), perjury (Ill.Rev.Stat.1989, ch. 38, par. 32-2), and violating the secured creditor criminal provisions of the Uniform Commercial Code-Secured Transactions (Ill.Rev.Stat.1989, ch. 26, par. 9-306.01(1)(b)). The court sentenced Nasser to four years and one month of probation, on the conditions, inter alia, that he serve six months in jail and pay restitution of approximately $35,000. Nasser appealed, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt of arson, and (2) the trial court erred in ordering him to pay restitution. The appellate court affirmed. 223 Ill.App.3d 400, 165 Ill.Dec. 576, 584 N.E.2d 1010.

This court allowed defendants' petitions for leave to appeal (134 Ill.2d R. 315) and consolidated the two appeals. The sole issue on appeal is whether, under section 5-5-6 of the Unified Code of Corrections (the Code) (Ill.Rev.Stat.1989, ch. 38, par. 1005-5-6), restitution can be paid to victims of nonviolent crimes. We affirm.

The facts in these consolidated cases can be briefly summarized. In cause No. 73054, Lowe, a secretary, stole $2,925 through the use of her employer's checks. In cause No. 73100, Nasser cosigned a loan with Albert Clark, a passive investor in and co-owner of his termite control business, who also loaned him $15,000. In addition, Nasser leased vehicles from a Chevrolet dealership owned by Clark. Nasser did not pay any of his indebtedness, and sold one of the leased vehicles to another dealership before Clark could repossess. The building in which the termite control business was located burned down as a result of arson. Nasser was seen at that location shortly before the fire started. Both Lowe and Nasser were convicted and ordered to make restitution to their victims.

Defendants argue that they should not have been sentenced to repay their victims, because section 5-5-6 restricts the payment of restitution to those who are victims of violent crimes. The State responds that Lowe and Nasser have waived their argument through failure to object to restitution at their sentencing and in post-trial or post-sentence motions.

It is clear that a defendant's failure to make a timely objection at trial and to renew it in a post-trial motion operates as a waiver of the right to raise the issue as a ground for reversal on review. (People v. Herrett (1990), 137 Ill.2d 195, 209, 148 Ill.Dec. 695, 561 N.E.2d 1.) Further, an accused may not ask the trial court to proceed in a certain manner and then contend in a court of review that the order which he obtained was in error. People v. Heard (1947), 396 Ill. 215, 219-20, 71 N.E.2d 321.

At sentencing, Lowe's defense counsel told the court:

"I think probation is the appropriate sentence for this case. I think the court should fix the amount of restitution in the amount of the checks of which she was convicted * * * [s]o I would ask the Court to fix restitution in that amount and my reason for that that [sic] is less than $3000.00."

Similarly, Nasser's defense counsel stated at sentencing:

"I don't wish to state on behalf of Mr. Nasser that he is unwilling to pay any amount of restitution that the Court determines is appropriate. * * * So I don't wish to say that Mr. Nasser isn't willing to pay or wouldn't cheerfully pay whatever the Court would order or whatever the Court feels is appropriate."

By stating their willingness to pay restitution, defendants have waived any contentions of error in the court's order for them to repay the victims of their crimes. (People v. Tharp (1991), 217 Ill.App.3d 429, 434, 160 Ill.Dec. 362, 577 N.E.2d 492.) The waiver rule, however, is a limitation on the parties, not on the reviewing court (In re Marriage of Rodriguez (1989), 131 Ill.2d 273, 279, 137 Ill.Dec. 78, 545 N.E.2d 731), and a reviewing court may ignore it if necessary in order to ensure the maintenance of a sound and uniform body of precedent (Hux v. Raben (1967), 38 Ill.2d 223, 225, 230 N.E.2d 831). Therefore, because a conflict exists within the appellate court as to whether restitution may be ordered for victims of nonviolent crimes, we address the issue at this time.

In Nasser, 223 Ill.App.3d 400, 165 Ill.Dec. 576, 584 N.E.2d 1010, the Fourth District of the Appellate Court refused to follow the Fifth District's decisions in People v. Stocke (1991), 212 Ill.App.3d 547, 156 Ill.Dec. 605, 571 N.E.2d 192, and People v. Sharp (1989), 185 Ill.App.3d 340, 133 Ill.Dec. 478, 541 N.E.2d 689, which held that restitution is available only to victims of violent crimes. Instead, the Nasser court reaffirmed the Fourth District's decision in People v. Strebin (1991), 209 Ill.App.3d 1078, 154 Ill.Dec. 420, 568 N.E.2d 420, where the court held that the purpose of the restitution statute is to fully compensate all crime victims for their injuries.

The restitution statute, section 5-5-6 of the Code provides:

"In all convictions for offenses in violation of the Criminal Code of 1961 committed against any person 65 years of age or older in which the person received any injury to their person or damage to their real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided in this Section. In all other cases the court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate the offender may be sentenced to make restitution which shall be determined by the Court as hereinafter set forth:

(a) At the sentence hearing, the court shall determine whether the property may be restored in kind to the possession of the owner or the person entitled to possession thereof; or whether the defendant is possessed of sufficient skill to repair and restore property damaged; or whether the defendant should be required to make restitution in cash, for out-of-pocket expenses, damages, losses, or injuries found to have been proximately caused by the conduct of the defendant or another for whom the defendant is legally accountable under the provisions of Article V of the Criminal Code of 1961." Ill.Rev.Stat.1989, ch. 38, par. 1005-5-6.

The primary object of statutory interpretation is to give effect to the intent of the legislature. (Croissant v. Joliet Park District (1990), 141 Ill.2d 449, 455, 152 Ill.Dec. 561, 566 N.E.2d 248.) An inquiry into legislative intent must begin with the language of the statute. (Metropolitan Life Insurance Co. v. Washburn (1986), 112 Ill.2d 486, 492, 98 Ill.Dec. 50, 493 N.E.2d 1071.) Were we to read only those portions of section 5-5-6 set out above, we would have no difficulty in finding that a court may impose restitution on any person convicted of a criminal offense. However, in subsequent subsections of section 5-5-6 there are frequent references to the "victim" to whom restitution must be made. Section 5-1-22 of the Code states that " '[v]ictim' shall have the meaning ascribed to it in subsection (a) of Section 3 of the Bill of Rights for Victims and Witnesses of Violent Crime Act." (Ill.Rev.Stat.1989, ch. 38, par. 1005-1-22.) Section 3(a) of the Bill of Rights for Victims and Witnesses of Violent Crime Act (the Act) defines "Victim" as a person against whom a violent crime has been committed, and "Violent Crime" as a felony in which force or threat of force was used. (Ill.Rev.Stat.1989, ch. 38, pars. 1403(a), (c).) Without more, we would have to accept that the legislature intended to restrict restitution to those who were victims of a violent crime. However, the introductory sentence of section 3 states that definitions of the Act shall apply "unless the context clearly requires otherwise." (Ill.Rev.Stat.1989, ch. 38, par. 1403.) We believe that, within the context of section 5-5-6, the term "victim" has a broader meaning than that given it in the Act.

We must presume that, in enacting legislation, the legislature did not intend an absurd result. (People v. Steppan (1985), 105 Ill.2d 310, 316, 85 Ill.Dec. 495, 473 N.E.2d 1300.) The legislature added section 5-1-22 to the Code in 1984. (Pub.Act 83-1499, eff. Dec. 27, 1984; 1984 Ill.Laws 3942.) Section 5-1-22 incorporates section 3 of the Act and thus defines victims as those injured by a violent...