People v. Williams

• Decision Date: 05 July 1990
• Docket Number: No. 1-88-1371,1-88-1371
• Citation: 147 Ill.Dec. 96,559 N.E.2d 96,201 Ill.App.3d 434
• Parties: , 147 Ill.Dec. 96 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael WILLIAMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 96

559 N.E.2d 96

201 Ill.App.3d 434, 147 Ill.Dec. 96

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael WILLIAMS, Defendant-Appellant.

No. 1-88-1371.

Appellate Court of Illinois First District, Third Division.

July 5, 1990.

Michael J. Pelletier, Deputy Defender, State Appellate Defender's Office, Chicago (Gordon H. Berry, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty. of Cook County, Chicago (Renee Goldfarb and James E. Fitzgerald, of counsel), for plaintiff-appellee.

Justice FREEMAN delivered the opinion of the court:

Following a bench trial, defendant Michael Williams was convicted of burglary (Ill.Rev.Stat.1985, ch. 38, par. 19-1(a)), and was sentenced as a Class X offender to a prison term of 12 years. (Ill.Rev.Stat.1985, ch. 38, par. 1005-5-3(c)(8).) On appeal, he contends that he was wrongfully sentenced as a Class X offender because there was no evidence of the dates of his prior offenses. He contends further that double jeopardy principles protect him from being resentenced as a Class X offender and that therefore the cause should be remanded for Class 2 or ordinary resentencing. (Ill.Rev.Stat.1985, ch. 38, par. 19-1(b).) In the alternative, he contends that his sentence was excessive and that it should be reduced to six years.

On the evening of August 9, 1987, Chicago police found defendant inside a burned-out, boarded-up liquor store located at 755 North Clark Street in Chicago. There was evidence that homeless people frequented the area and that the premises previously had been burglarized. When defendant was found, he was inside a cooler that contained cheese, beer and other beverages, and his pocket contained pickled pigs' feet. There were 20-to-25 liquor bottles and an open jar of pickled pigs' feet near defendant. There were also two buckets filled with liquor bottles on the roof.

The trial court convicted defendant of burglary and ordered an evaluation by T.A.S.C., Inc. (Treatment Alternatives to Street Crimes).

T.A.S.C. found that defendant was an addict who was ineligible and unacceptable for T.A.S.C. services because he lacked "recognition of a need" and did not "exhibit a readiness for drug treatment." The trial court then held a sentencing hearing.

At the sentencing hearing, the assistant State's Attorney argued in aggravation that defendant's criminal background made him eligible for a Class X sentence.

The record discloses the following information about defendant's criminal background: on October 12, 1972, defendant was convicted of criminal damage to property, was sentenced to probation for one year and was ordered to pay restitution in the amount of $125; on January 3, 1974, he was convicted of burglary and was sentenced to probation for one year; on January 23, 1974, he was convicted of theft and was sentenced to 30 days in jail; on August 16, 1974, he was adjudged to be in violation of probation in connection with the 1974 burglary conviction and was sentenced to a prison term of one-to-three years; on May 12, 1976, he was convicted of burglary and was sentenced to a prison term of one-to-five years; and on February 15, 1978, he was arrested for burglary, was convicted on June 20, 1978, was sentenced to a prison term of three years, and was paroled on August 15, 1979.

The record discloses further that on August 31, 1979, defendant was arrested for burglary, was convicted on April 24, 1980, was sentenced to a prison term of six years, and was discharged on March 16, 1984; on June 8, 1984, he was arrested for theft, was convicted on July 5, 1984, and was sentenced to jail for 27 days; and on July 15, 1984, he was arrested for burglary, was convicted on August 9, 1984, was sentenced to a prison term of four years, and was paroled on April 25, 1986. On August 9, 1987, defendant committed and was arrested for the present burglary, was convicted on January 13, 1988, and was sentenced on April 28, 1988.

The record discloses further that defendant was homeless and had not had stable employment since the late 1970's.

In sentencing defendant to a 12-year prison term, the trial judge indicated that defendant's "prior contacts" unquestionably rendered him eligible for a Class X sentence.

On appeal, defendant contends that the trial court erred in sentencing him as a Class X offender because the State failed to prove the sequence of prior convictions required by the statute that governs Class X sentencing. The State suggests that any error was waived because defendant failed to dispute the accuracy or validity of the information presented to the trial court. However, we decline to treat the matter as waived and turn our attention to the merits instead. See People v. Washington (1990), 195 Ill.App.3d 520, 528-29, 142 Ill.Dec. 326, 552 N.E.2d 1067; People v. Pietruszynski (1989), 189 Ill.App.3d 1071, 1081, 137 Ill.Dec. 181, 545 N.E.2d 942; but see People v. Stewart (1989), 186 Ill.App.3d 833, 838, 134 Ill.Dec. 569, 542 N.E.2d 915.

Burglary is a Class 2 felony with a statutory penalty range of not less than three nor more than seven years imprisonment. (Ill.Rev.Stat.1985, ch. 38, pars. 19-1(b); 1005-8-1(a)(5).) The statutory penalty range for a Class X felony is not less than six nor more than 30 years imprisonment. (Ill.Rev.Stat.1985, ch. 38, par. 1005-8-1(a)(3).) Pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections (Ill.Rev.Stat.1985, ch. 38, par. 1005-5-3(c)(8)), prior convictions for Class 2 felonies can be used to enhance the defendant's sentence to Class X magnitude under certain circumstances. The statute provides as follows:

"When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony, after having twice been convicted of any Class 2 or greater Class felonies in Illinois, and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977 [February 1, 1978 (Pub. Act 80-1099) ]; and (2) the second felony was committed after conviction on the first; and (3) the third felony was committed after conviction on the second." (Ill.Rev.Stat.1985, ch. 38, par. 1005-5-3(c)(8).)

Prior convictions used to enhance the defendant's sentence must be proved beyond a reasonable doubt. (People v. Harris (1987), 157 Ill.App.3d 70, 74, 109 Ill.Dec. 486, 510 N.E.2d 107.) Proof of the prior convictions generally consists of certified copies of the convictions and identification of the defendant as the person convicted. (People v. Harris.) Even if certified copies are introduced disclosing the dates of the defendant's prior arrests and convictions, the State must still introduce evidence of the dates on which the prior offenses were committed. People v. Parks (1988), 168 Ill.App.3d 978, 987, 119 Ill.Dec. 662, 523 N.E.2d 130.

In the case at bar, defendant does not dispute that he was over 21 years old when he was convicted of the Class 2 felony in the present case on January 13, 1988. Nor does he dispute his identification as the person convicted of the prior offenses. Rather, he disputes the sufficiency of the evidence concerning the dates on which he committed the prior offenses.

There is no direct evidence of the dates on which defendant committed the prior offenses, and the issue therefore is whether the dates of commission of the prior offenses can be circumstantially inferred from the dates of arrest and conviction. The authorities are divided on this question. The sixth division of this district has held that it is permissible to infer the dates of commission of prior offenses from the dates of prior arrests and convictions (People v. Stewart (1989), 186 Ill.App.3d 833, 838, 134 Ill.Dec. 569, 542 N.E.2d 915), but the second district and the first and fifth divisions of this district have declined to draw the inference. (See People v. Hamilton (1990), 198 Ill.App.3d 108, 144 Ill.Dec. 426, 555 N.E.2d 785; People v. Pietruszynski (...