People v. Rowell

• Decision Date: 15 December 2006
• Docket Number: No. 4-04-0481.,4-04-0481.
• Citation: 874 N.E.2d 553,375 Ill. App.3d 421
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard L. ROWELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

874 N.E.2d 553

375 Ill. App.3d 421

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard L. ROWELL, Defendant-Appellant.

No. 4-04-0481.

Appellate Court of Illinois, Fourth District.

December 15, 2006.

Justice COOK delivered the opinion of the court:

In March 2004, after a stipulated bench trial, the trial court found defendant, Howard L. Rowell, guilty of retail theft of property having a retail value exceeding $150 (720 ILCS 5/16A-3(a) (West 2004)). Defendant filed a motion for judgment of acquittal or, in the alternative, motion in arrest of judgment, and the court denied the motion. In May 2004, the court sentenced defendant to 30 months' probation. Defendant appeals. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

On August 26, 2003, defendant was charged with the misdemeanor offense of theft by deception (720 ILCS 5/16-1(a)(2) (West 2002)). The information alleged that defendant sold store product belonging to his employer, Electronics Boutique (EB), and kept the money for himself. On September 22, 2003, the theft-by-deception charge was dismissed. On September 25, 2003, the State filed an information charging defendant with the felony offense of retail theft of items valued at over $150. The information alleged that between July 15 and August 25, 2003, defendant knowingly took 15 electronic computer games valued at over $150 from EB, a retail mercantile establishment, with the intent to permanently deprive the merchant of the use or benefit of the property without paying the full retail value. On December 3, 2003, the State filed an information labeled "count 2," which again charged defendant with felony retail theft from EB. Count II was similar to the original information but added that the stolen items were 15 "Xbox Brand Video Games" and defendant knowingly took these games "during a continuing course of conduct."

On January 26, 2004, defense counsel requested a bench trial and indicated the parties may proceed on stipulated evidence. The trial court admonished defendant as to his right to a jury trial. Defendant indicated he understood his right and tendered a written waiver of the right to a jury trial.

On March 10, 2004, the trial court held a bench trial. At the trial, defense counsel agreed with the State that defendant was willing to stipulate to the following: three police reports, a written statement by defendant given to EB, a summary of the cost of the games that were stolen from EB, a videotaped statement by defendant, and the fact that EB is a retail mercantile establishment. The reports outlined the following facts. The manager of EB reported that management had suspected defendant, an employee, of stealing games, selling them to friends, and pocketing the sale proceeds. To confirm its suspicions, a loss-prevention officer made a purchase from defendant, who sold an item at a reduced price and pocketed the money. When confronted, defendant admitted to the loss-prevention officer and manager that he stole games for himself and sold games at reduced rates to friends and then kept the money. Defendant gave a written statement to EB outlining his thefts.

Defense counsel stated he would not present any additional evidence. The trial court read the reports and asked for argument. The State argued that defendant's written statement showed defendant's guilt of the theft of the 15 video games. Defendant acknowledged he had taken about $367 worth of games, and a store employee listed the amount at $430.85. Defense counsel argued that the case presented no factual dispute and directed the court to count II. The court noted that count I had not been dismissed, and defense counsel responded his argument applied to either count. Counsel then stated that the information, particularly count II, is flawed. Count II's reference to a "continuing course of conduct" is not authorized by statute. Counsel argued that the most the evidence showed is "a bunch of misdemeanors, not a felony. I believe the felony is improperly charged here." Counsel pointed to the fact that the games had been taken over a series of dates and that the State could not prove that the games were taken in one transaction. The State responded that the phrase "during his employment with EB games" was "somewhat telling on that issue." The State also said that the officer went into the details of how defendant was taking items during the videotaped statement. The court took the matter under advisement.

On March 24, 2004, the trial court entered an order, without explanation, convicting defendant on count II. On April 15, 2004, defendant filed a motion for judgment of acquittal or, in the alternative, motion in arrest of judgment. In the motion, defendant argued that the State improperly aggregated the value of the games by alleging that the individual thefts of the games were "during a continuing course of conduct" when what is required is proof that the acts were "in furtherance of a single intention and design." Defendant argued that the evidence did not prove a single intent or design and, at best, the evidence showed only multiple intents to take the games, which were individually valued at less than $150. Defendant claimed he should be acquitted of the felony charge. Also, defendant contended that the charging instrument was defective for failure to allege the specific felony mental state, in furtherance of a single intention and design, so the charge did not state an offense.

On May 24, 2004, the trial court responded to defendant's motion as follows, "Well, the court looked at that issue, and I believe there is some case law that directly supports the court's ruling on that, and the motion will be denied." The court sentenced defendant to 30 months' probation and 120 days in jail with 30 days to be served right away and the balance to be stayed pending review. The court also ordered defendant to pay $430.85 in restitution to EB and imposed the following fees, fines, and costs: "$200 [deoxyribonucleic acid (DNA)], $10 draw fee, $20 [Violent Crime Victims Assistance (VCVA)], $20 surcharge, $4 state[-]police fee." Defense counsel also requested a $200 public-defender fee, which the court granted without discussion.

On May 26, 2004, the trial court granted the State's motion to dismiss count I. This appeal followed.

II. ANALYSIS

On appeal, defendant presents nine issues for review. First, defendant argues that his felony conviction must be reduced to a misdemeanor because the State failed to prove the separate and individual thefts were in furtherance of a single intention and design. Second, defendant's felony conviction must be vacated because the information failed to allege defendant's conduct was in furtherance of a single intention and design and defendant was prejudiced by this failure. Third, defendant's conviction must be vacated because he was not admonished pursuant to Supreme Court Rule 402 (177 Ill.2d R. 402) and he was not admonished about the stipulations before his stipulated bench trial, which was tantamount to a guilty plea of misdemeanor retail theft. Fourth, defendant is entitled to two days' sentence credit and a $5-a-day credit for time served to be applied against a $4 penalty imposed by the trial court. Fifth, the reimbursement order for counsel fees should be vacated because the court failed to conduct a hearing before entering the fee order. Sixth, the restitution amount should have been reduced by the value of the recovered video games. Seventh, the county-board fee should have been $40, the amount allowed at the time of the filing, not $100, the amount allowed at the time defendant was convicted. Eighth, the $10 DNA testing "draw fee," the $20 fine surcharge, and the $4 penalty should not have been ordered. Ninth, the extraction and storage of defendant's DNA violated his fourth-amendment right to be free from unreasonable searches and seizures.

A. Concessions

The State concedes the following issues. First, defendant is entitled to two days' sentence credit and $10 credit to be applied against the $4 penalty imposed. Second, the trial court failed to hold a hearing to determine defendant's ability to pay the reimbursement order for counsel fees, so that order should be vacated and we should remand for a hearing. Third, the $10 DNA-processing fee should be vacated, as should the $20 surcharge. We agree with these concessions.

Defendant was arrested on August 25 and released August 26, 2003, for misdemeanor theft. In September 2003, the misdemeanor was dismissed and replaced with a felony charge. Defendant argues he is entitled to sentencing credit for the two days he spent in custody for the misdemeanor charge. The State agrees that pursuant to subsection 5-8-7(c) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-8-7(c) (West 2004)), defendant is entitled to the two days. This provision states that "[a]n offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given [sentence credit] * * * for time spent in custody under the former charge not credited against another sentence." 730 ILCS 5/5-8-7(c) (West 2002). Because the felony-theft charge, which resulted in a conviction and sentence, replaced the misdemeanor charge, defendant is entitled to the two days. See People v. Woznick, 209 Ill. App.3d 1061, 1064, 154 Ill.Dec. 425, 568 N.E.2d 425, 427 (1991) (noting that council commentary demonstrates that section 5-8-7(c) applies when the offender is arrested on one charge and the original charge is dropped in favor of a new charge that results in conviction and imprisonment).

Defendant is also entitled to have the $4 state-police fee offset because section 110-14 of the Code of Criminal Procedure of 1963 (Criminal Code) provides that "[a]ny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense...