People v. Perry

Decision Date16 February 2007
Docket NumberNo. 101612.,101612.
Citation224 Ill.2d 312,864 N.E.2d 196
PartiesThe PEOPLE of the State of Illinois, Appellant, v. Michael L. PERRY, Appellee.
CourtIllinois Supreme Court

Lisa Madigan, Attorney General, Springfield, Joseph E. Birkett, State's Attorney, Wheaton (Gary Feinerman, Solicitor General, Garson Fischer, Assistant Attorney General, Chicago, Norbert J. Goetten, Martin P. Moltz, Kristine A. Karlin, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for the People.

Thomas A. Lilien, Deputy Defender, Office of the State Appellate Defender, Elgin, for appellee.


Justice GARMAN delivered the judgment of the court, with opinion:

After a jury trial in the circuit court of Du Page County, defendant Michael L. Perry was convicted of theft by deception (720 ILCS 5/16-1(a)(2) (West 2000)). Based on the value of the stolen property, his crime was classified as a Class 2 felony and he was sentenced to a term of six years' imprisonment and ordered to pay restitution. 720 ILCS 5/16-1(b)(5) (West 2000). On appeal, the court held that he could be convicted only of the lesser offense of theft of property valued in excess of $300, but less than $10,000 (720 ILCS 5/16-1(b)(4) (West 2000)), a Class 3 felony, and remanded for a new sentencing hearing. 361 Ill.App.3d 703, 296 Ill.Dec. 864, 836 N.E.2d 387. We granted the State's petition for leave to appeal, under Rules 315 and 604(a)(2) (210 Ill.2d Rs. 315, 604(a)(2)), to determine whether defendant was properly convicted of theft of property valued in excess of $10,000 when the property at issue was the occupancy of a hotel room for a period of more than three months. In addition, we consider defendant's request for cross-relief on his claim of ineffective assistance of trial counsel.


Defendant, along with his wife and children, occupied a suite at the Embassy Suites hotel in Lombard, Illinois, from January through April 2000. The testimony at trial revealed that after staying at the hotel for several weeks, defendant sought to negotiate a reduced rate for the room. He also requested that the cost of his stay be billed to a company of which he was the president, Prolific Development Corporation (Prolific). He provided several trade references and a credit card in the name of Bryan Green.

The hotel manager drafted a document headed "RATE AGREEMENT February 2000December 30, 2000." The agreement provided for a rate of $130 per night for a two-room suite, with a minimum stay of 100 nights "on an annual basis." Both parties signed the agreement. Several days thereafter, the hotel controller sent a letter to defendant at the address he had provided for Prolific, confirming that billing statements would be sent to the corporate address and that the hotel's "net terms are 30 days from each statement date."

After four bills sent to the business address went unpaid, the hotel's controller slid a letter under defendant's hotel room door. The letter noted that payment was more than 60 days past due and that the balance on the account was over $12,000. Defendant did not respond to the letter.

Eventually, it was revealed that the person defendant identified as the contact person for Prolific was not actually connected with the company. The hotel was also unable to contact the company using the e-mail address provided by defendant. Bills and letters that had been sent to the business address were returned to the hotel by the post office in a single envelope marked "Address Unknown." When the trade references were eventually contacted, one reported that defendant did not have a valid account. Another reported that defendant was not in good standing and owed it money.

At various times, defendant explained to members of the hotel staff that he was having problems with the post office, that he had submitted the bill to his accountant for payment, that payment would be made by May 9, 2000, that payment would arrive "any day," and that the check was being "cut from another company" about which he was unable to provide any information.

On the afternoon of May 12, 2000, the hotel contacted the Lombard police department. An officer responded and, along with several members of the hotel staff, went to defendant's room to speak to him. He was not present, so they left a message with his wife. Defendant did not respond to the message.

During the night shift on May 13, 2000, defendant and his family vacated the hotel room without checking out or settling the bill. Although defendant paid a small portion of his bill by credit card during the early part of his stay, the unpaid balance for the room, restaurant, laundry services, telephone, and other charges exceeded $15,000. An attempt by the hotel to charge some of these expenses to the credit card in the name of Bryan Green, which defendant had provided earlier, was unsuccessful because the individual named on the credit card disputed the charges.

A Du Page County grand jury returned an indictment charging defendant with theft by deception "of property exceeding $10,000 and not exceeding $100,000 in value." 720 ILCS 5/16-1(a)(2), (b)(5) (West 2000). He remained free on bond but failed to appear on January 9, 2001. The following month, he was taken into custody in Georgia. He was returned to Illinois in April 2001.

After a jury trial, defendant was convicted of the theft and sentenced accordingly. 720 ILCS 5/16-1(b)(5) (West 2000). The additional charge of violating his bail bond and failing to appear was nol-prossed by the State.


Part C of the Criminal Code of 1961 codifies the law of offenses against property. Article 15 therein defines various statutory terms used elsewhere in part C, including the term "property." Article 16 defines theft and related offenses. Defendant was charged with theft under section 16-1:

"(a) A person commits theft when he knowingly: * * *

(2) Obtains by deception control over property of the owner; * * *

* * *

* * * and

(A) Intends to deprive the owner permanently of the use or benefit of the property[.]" 720 ILCS 5/16-1(a)(2)(A) (West 2000).

Depending on the value of the stolen property and other facts, the crime of theft may be punished as a Class A misdemeanor, a Class 4, 3, 2, or 1 felony, or a Class X felony. 720 ILCS 5/16-1(b) (West 2000). "Theft of property exceeding $10,000 and not exceeding $100,000 in value is a Class 2 felony." 720 ILCS 5/16-1(b)(5) (West 2000). "When a charge of theft of property exceeding a specified value is brought, the value of the property involved is an element of the offense to be resolved by the trier of fact as either exceeding or not exceeding the specified value." 720 ILCS 5/16-1(c) (West 2000).

"Property" is defined in section 15-1 as follows:

"`[P]roperty' means anything of value. Property includes real estate, money, commercial instruments, admission or transportation tickets, written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner; things growing on, affixed to, or found or land, or part of or affixed to any building; electricity, gas and water; telecommunications services; birds, animals and fish, which ordinarily are kept in a state of confinement; food and drink; samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, computer programs or data, prototypes or models thereof, or any other articles, materials, devices, substances and whole or partial copies, descriptions, photographs, prototypes, or models thereof which constitute, represent, evidence, reflect or record a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement." 720 ILCS 5/15-1 (West 2000).

Relying on People v. Davis, 203 Ill. App.3d 838, 148 Ill.Dec. 859, 561 N.E.2d 165 (1990), the appellate court concluded that the occupancy of a hotel room is not "property" as that term is defined in section 15-1. As a result, the stolen property consisted only of food and other incidentals obtained by defendant, valued at over $300, but less than $10,000, and punishable as a Class 3 felony. 720 ILCS 5/16-1(b)(4) (West 2000).

The Davis defendants were indicted for theft of property after it was alleged that they instructed city employees to engage in political activities such as the collection of absentee ballots during time that they were being paid by the City of East St. Louis to work on a public works project. Davis, 203 Ill.App.3d at 841, 148 Ill.Dec. 859, 561 N.E.2d 165. The trial court dismissed the indictments on the basis that the labor of an employee is not the property of the employer and, thus, diversion of the employee's labor is not a theft. Davis, 203 Ill.App.3d at 841-42, 148 Ill.Dec. 859, 561 N.E.2d 165.

The appellate court affirmed the dismissal of the indictments for several reasons. The court noted that "[a]t common law, only tangible personal property could be the subject of larceny" (Davis, 203 Ill. App.3d at 844, 148 Ill.Dec. 859, 561 N.E.2d 165), and that section 15-1 was intended to add to this definition "things not embraced by larceny under common law." The court concluded that the statutory definition of property in section 15-1 includes only tangible personal property that was subject to larceny at common law, indicated by the phrase "anything of value," and those other items specifically enumerated in the following sentence. Further, the court stated that section 15-1 "only lists items which may be physically possessed and carried away." Davis, 203 Ill.App.3d at 845, 148 Ill.Dec. 859, 561 N.E.2d 165.

In addition, the Davis court relied on the canon of construction that "[l]egislation in derogation of the common law is usually strictly construed." Thus, the court stated, the word "includes" in section 15-1 "should be considered an enumeration...

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