People v. Pizano
Decision Date | 04 March 2004 |
Docket Number | No. 1-01-4277.,1-01-4277. |
Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cesar PIZANO, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
Michael J. Pelletier, Daniel J. Walsh, Office of the State Appellate Defender, Chicago, for Appellant.
Richard A. Devine, Renee Goldfarb, Heather Weiss, Thomas J. Loftus, Office of the Cook County State's Attorney, Chicago, for Appellee.
Following a bench trial, defendant Cesar Pizano was convicted of knowingly possessing a fraudulent identification card and sentenced to 18 months' probation and 7 days in the Sheriff's Work Alternative Program (SWAP). On appeal, he raises the following contentions: (1) his sentence violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11); (2) section 14B(b)(1) of the Illinois Identification Card Act (the Act) (15 ILCS 335/14B(b)(1) (West 1998)) is unconstitutionally overbroad and violates his right to substantive due process; and (3) trial counsel was ineffective by eliciting prejudicial testimony from defendant. For the following reasons, we affirm defendant's conviction, vacate his sentence, and remand for resentencing.
On December 14, 1999, defendant was arrested for retail theft while at a department store at 4620 South Damen Street in Chicago. Officer Joseph Elfaher testified that he retrieved two resident alien identification cards from defendant's wallet. One of the cards displayed defendant's real name and the other card displayed the name "Cesar Ruiz." Defendant admitted that the card with the name of Cesar Ruiz was fake and that he had purchased it from a nearby store. The parties then stipulated that if called to testify, Joe Ferra of the Department of Immigration and Naturalization Services would testify that, after analyzing the alien identification card with the name Cesar Ruiz on it, he determined that the card was fraudulent.
Defendant testified that he had lived in the United States for 19 years. He had two resident alien identification cards, one of which he was authorized to carry and one of which he was not authorized to carry. He stated that six months prior to his arrest his wallet was stolen and he purchased a fraudulent identification card to "get into clubs and that." Defendant was over the age 21 at the time. He subsequently applied for and received an official replacement identification card, but continued to keep the fraudulent card in his wallet. He stated that he forgot he had the fraudulent card in his wallet, but when asked by the court how often he used the card to go to clubs, he replied, "two or three times in a month." The trial court found defendant guilty of knowingly possessing a fraudulent identification card under section 14B(b)(1) of the Act. 15 ILCS 335/14B(b)(1) (West 1998).
Article I, section 11 of the Illinois Constitution, commonly referred to as the proportionate penalties clause, provides in pertinent part that "[a]ll penalties shall be determined * * * according to the seriousness of the offense * * *." Ill. Const. 1970, art. I, § 11. Our supreme court has held that the proportionate penalties clause can be violated in one of three instances, namely, where (1) the penalty for an offense is cruel, degrading, or so completely disproportionate to the offense for which it is imposed as to shock the moral sense of the community; (2) similar offenses are compared and conduct that creates a less serious threat to public health and safety is punished more severely; and (3) the penalties imposed for identical offenses differ. People v. Moss, 206 Ill.2d 503, 522, 276 Ill.Dec. 855, 795 N.E.2d 208, 220 (2003).
In the present case, defendant asserts a violation of the second type. He initially argues that the penalty for the offense for which he was convicted, knowing possession of a fraudulent identification card, is more severe than the penalty imposed for the offenses delineated in various other subsections of the statute, which defendant maintains are similar but more serious offenses. When a defendant raises a challenge of this type, the court must apply a two-step cross-comparison analysis of the various subsections of the statute. See People v. Hill, 199 Ill.2d 440, 455, 264 Ill.Dec. 670, 771 N.E.2d 374, 383 (2002). First, the court must compare the purposes of the specific provisions contained in the same statute and determine whether they are sufficiently distinct such that proportionality review is inappropriate. If the offenses do not have common or related purposes, a comparative proportionality review is inappropriate; when legislation defining criminal offenses is enacted for different purposes, we will presume that the legislature considered different factors in determining the appropriate penalties for the offenses and will defer to its judgment in this regard. If, however, the purposes of the two offenses are related, the court must then determine whether the offense with the harsher penalty is more serious than the offense with the lesser penalty. Moss, 206 Ill.2d at 523, 276 Ill. Dec. 855, 795 N.E.2d at 221; Hill, 199 Ill.2d at 454, 264 Ill.Dec. 670, 771 N.E.2d at 383. Accordingly, we must first determine whether the legislature had a common or related purpose when enacting the various subsections of the fraudulent identification card statute.
Section 14B provides as follows:
Where the legislature has not explicitly stated its purpose in enacting the various subsections of the statute, the plain language of the statute is the best indicator of legislative intent. People v. Koppa, 184 Ill.2d 159,169, 234 Ill.Dec. 479, 703 N.E.2d 91, 97 (1998).
Defendant argues that the common purpose of the statute is to "protect the public from fraud, perpetrated by the use of a fraudulent identification card." We disagree that the legislature is merely targeting the use of these fraudulent cards. While sections (b)(1) through (b)(6) indeed deal with the knowing possession or display of a fraudulent identification card, sections (b)(7) and (b)(8) focus on the implements designed to manufacture, assemble or authenticate the cards. Section (b)(9) targets those persons who duplicate, manufacture, sell or transfer the cards, and Section (b)(10) targets those persons who promote the sale of the cards. Thus, it is evident that the legislature had distinct purposes in enacting sections (b)(7) through (b)(10) as they are aimed, not at the possession or use of these cards, as in section (b)(1), but the promotion, manufacture, distribution and implementation of these cards. Accordingly, it cannot be maintained...
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...to remand for resentencing in accordance with the statute as it existed prior to the amendment. See People v. Pizano, 347 Ill.App.3d 128, 136 [282 Ill. Dec. 512, 806 N.E.2d 1100] (2004)(proper remedy where a statutory amendment is found to have violated proportionate penalties clause is to ......
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